Kelley v. Comptroller of New York

249 A.D.2d 751, 671 N.Y.S.2d 808, 1998 N.Y. App. Div. LEXIS 4077

Opinions

—White, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner’s application for retroactive membership in respondent New York State and Local Employees’ Retirement System.

On April 12, 1973, respondent Shenendehowa Central School District (hereinafter the District) appointed petitioner to the full-time position of teacher aide. Although eligible to join respondent New York State and Local Employees’ Retirement System, petitioner did not do so until 1974. In February 1994, petitioner, pursuant to Retirement and Social Security Law § 803 (b) (1), filed an application with the Retirement System for retroactive membership to April 1973. The District filed an affidavit denying the application and, apparently, in December 1994 the Retirement System’s Administrative Review Board determined that petitioner was not entitled to retroactive membership.

* Petitioner then requested an administrative hearing and redetermination. Following the evidentiary hearing, the Hearing Officer approved petitioner’s application, concluding that the District’s disapproval failed to meet the requirements set forth in Retirement and Social Security Law § 803. Thereafter, respondent Comptroller issued a determination overruling the Hearing Officer’s conclusion oil the ground that petitioner did not satisfy the burden of proof imposed on her by the subject statute. This CPLR article 78 proceeding ensued.

Under Retirement and Social Security Law § 803 (b) (3), an applicant for retroactive membership in a pension system must establish by substantial evidence, inter alia, that he or she did not “participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system”. Generally, this burden is satisfied by the applicant’s assertion that he or she was never informed of the right to join a retirement system (see, Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 677-678).

In this instance, petitioner produced a letter dated April 13, 1973 from the District informing her of her appointment and further stating: “An application for membership in the NYS employees [sic] Retirement System is also enclosed. Membership in the system is optional. Kindly complete this application and file it with us as . soon as possible if you wish to join.” Petitioner explained that she did not join because the application form was not enclosed in the letter and, as the letter was a form letter covering all employees, she assumed that the absence of the form meant that she was not eligible to join the Retirement System. She admitted that she made no inquiries regarding her eligibility and conceded that joining the Retirement System at that time was not one of her concerns.

We have held that an employer who orally advised its employee of his option to join the Retirement System had a rational basis for denying retroactive membership (see, Matter of Plasberg v State of New York, 245 AD2d 681). Clearly, this case presents stronger evidence of notification. The fact that the application form may not have been enclosed in the April 13, 1973 letter does not negate the letter’s import for, in our view, a reasonable person reading its contents would have been alerted to the opportunity to join the Retirement System and would have made further inquiry if interested in doing so, which petitioner conceded she was not. In light of these circumstances, we conclude that petitioner did not satisfy her burden and, accordingly, confirm the Comptroller’s determination. We also note that this determination is in accord with Retirement and Social Security Law § 803, which was not designed to provide relief to members who failed to join the Retirement System when first eligible due to their negligence or improvidence (see, Governor’s Mem, 1993 McKinney’s Session Laws of NY, at 2896).

Cardona, P. J., Mercure and Carpinello, JJ., concur.

This determination is referred to in the record but not included therein.