Kulikowsky v. Levitt

70 A.D.2d 735, 416 N.Y.S.2d 853, 1979 N.Y. App. Div. LEXIS 12217

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1979
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Comptroller denying petitioner’s application for retirement service credit for a year spent on educational leave of absence. Petitioner, a captain in the Division of State Police, duly applied for educational leave in 1956 for one year, as authorized by section 246 of the Military Law. He received approval from the Superintendent of State Police, and was on leave without pay for the period October 15, 1956 to August 1, 1957. Thereafter, he was duly reinstated as a trooper, and took payroll deductions to "buy back” the year of absence for pension purposes. These deductions were approved and authorized by the administrative director of the system. In 1974, when petitioner informed the Retirement system that he was contemplating retirement, he was informed that if he did so on October 1, 1974, he would have 20 years of service including the period of his educational absence. Later that same year, he formally applied for retirement, but was informed, for the first time, that the Comptroller had not approved his leave in 1956. His retirement application was accordingly rejected on the basis that he did not have the requisite 20 years of service. The notice of rejection stated that he had "erroneously” been allowed to pay for the time spent in pursuit of his education. He ultimately retired on November 27, 1975 after completing 20 years of service excluding the time of absence. A hearing was conducted on June 21, 1976 at which petitioner sought to have the year in dispute credited for retirement purposes in order to increase his yearly pension. The hearing officer held that there was an absence of prior written approval from the Comptroller for service credit as required by section 341 of the Retirement and Social Security Law. It was further determined that estoppel could not be asserted against the administrative agency based on erroneous or mistaken information. Petitioner argues that the record contains substantial evidence that the Comptroller approved his educational leave at the time said leave was commenced. However, petitioner, himself, testified that he found no indication that the division had advised the Comptroller of his application for the leave of absence. Moreover, petitioner’s attorney conceded at the hearing that written approval was not obtained at the time the leave was granted. The statutory prerequisite of prior approval by the Comptroller is not a mere formality that can be waived or excused (Matter of Leap v Levitt, 57 AD2d 1021, mot for lv to app den 42 NY2d 807). Therefore, petitioner neither requested nor obtained approval from the Comptroller for retirement credit prior to the educational leave. Subdivision b of section 411 of the Retirement and Social Security Law requires that the system correct any errors that would result in an employee receiving more than he would have been entitled to receive had the records been correct in the first instance (Matter of Newcomb v New York State Teachers’ Retirement System, 43 AD2d 353, aifd 36 NY2d 953). Since approval by the Comptroller is a statutory prerequisite to qualify educational leave for retirement credit, petitioner’s claim could not be valid without the requisite approval. The record contains substantial evidence to support the determination of the Comptroller that petitioner was not entitled to retirement credit for the period of his educational leave of absence. Determination confirmed, without costs, and petition dismissed. Mahoney, P. J., Greenblott and Staley, Jr., JJ., concur.