Matter of Clancy v. New York State Local Retirement Sys.
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Opinion
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Bureau Thomas J.K. Smith, State Reporter
Matter of Clancy v New York State Local Retirement Sys.
2026 NY Slip Op 04352
July 9, 2026
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
In the Matter of Cristina G. Clancy, Petitioner,
v
New York State Local Retirement System et al., Respondents.
Decided and Entered:July 9, 2026
CV-25-0667
Calendar Date: May 29, 2026
Before: Clark, J.P., Aarons, Ceresia, Mcshan And Powers, JJ.
Ryan, Brennan & Donnelly, LLP, Floral Park (John E. Ryan of counsel), for petitioner.
Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondents.
Clark, J.P.
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 the Executive Deputy Comptroller denying petitioner's application for retroactive tier 4 status in respondent New York State and Local Retirement System.
Petitioner was hired by the Town of Hempstead as a part-time seasonal employee in June 2009. That part-time position made membership in respondent New York State and Local Retirement System optional and, as reflected on petitioner's employment application, she indicated that she was opting to become a member of the Retirement System. At that time, tier 4 membership was in effect. In March 2012, petitioner obtained full-time employment with the Town in a position that mandated membership in the Retirement System, at which point petitioner was enrolled as a tier 5 member in the Retirement System. Upon becoming aware that she was not considered a tier 4 member of the Retirement System, petitioner contacted the Town and was informed that no 2009 membership application for her enrollment in the Retirement System could be located and, due to an apparent oversight or clerical error by the Town, no membership application for petitioner had been filed with the Retirement System until 2012.
In 2020, petitioner filed an application with the Retirement System, requesting retroactive tier 4 membership. Following a hearing on her application, a Hearing Officer, finding that petitioner did not meet her burden of establishing an entitlement to retroactive reinstatement, recommended that petitioner's application be denied. The Executive Deputy Comptroller adopted those findings of fact and conclusion of law and denied petitioner's application. This CPLR article 78 proceeding ensued.
We are constrained to confirm. Because petitioner's membership in the Retirement System was optional in 2009 based upon her part-time, seasonal employment, her membership in the Retirement System could begin only upon the Comptroller's receipt of a completed membership application (see Retirement and Social Security Law §§ 40 [a]; 45; 2 NYCRR 340.2 [a]; see also Matter of Bolier v New York State Employees' Retirement Sys., 167 AD2d 815, 815 [3d Dept 1990]; Matter of Klein v Regan, 165 AD2d 944, 945 [3d Dept 1990]). The record establishes, and petitioner does not dispute, that no enrollment application for petitioner was received by the Retirement System until 2012, which properly places her at a tier 5 status. Notwithstanding any error by the Town in not filing a membership application on behalf of petitioner despite her selection on her 2009 employment application to opt in to the Retirement System, the employer is not an agent of the Comptroller (see 2 NYCRR 340.2 [a], [b]). Moreover, the Comptroller cannot be estopped from applying a statutory requirement or to authorize retroactive retirement status membership that is contrary to law (see Matter of Bombace v Nitido, 117 AD3d 1375[*2], 1376 [3d Dept 2014]; Matter of Hession v New York State & Local Employees' Retirement Sys., 24 AD3d 1008, 1010 [3d Dept 2005]; see also Matter of Radwan v DiNapoli, 237 AD3d 1342, 1345 [3d Dept 2025]). As optional membership begins only upon the actual filing of the application to join the Retirement System with the Comptroller and, as no such application was filed on her behalf in 2009, petitioner has failed to establish her entitlement to retroactive status to a tier 4 Retirement System member (see Matter of Dell v Regan, 186 AD2d 336, 336-337 [3d Dept 1992]; Matter of Bolier v New York State Employees' Retirement Sys., 167 AD2d at 815-816; Matter of Klein v Regan, 165 AD2d at 945). Accordingly, the denial of petitioner's application for retroactive membership to tier 4 status in the Retirement System is rational and supported by substantial evidence (see Matter of Bolier v New York State Employees' Retirement Sys., 167 AD2d at 815-816; Matter of Klein v Regan, 165 AD2d at 945; see also Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 678 [1997]).
Petitioner's reliance on Retirement and Social Security Law § 803 is unavailing. That statute and the retroactive membership provisions therein apply only to service rendered before April 1993 and required applications to be filed by 1996 — statutory criteria petitioner clearly does not meet.
Aarons, Ceresia, McShan and Powers, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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