McLaughlin v. New York City Employees' Retirement System

70 A.D.2d 631, 417 N.Y.S.2d 4, 1979 N.Y. App. Div. LEXIS 12070

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1979
• Status: Published

Opinion

— In an action to recover retirement allowance benefits, plaintiff appeals (by permission) from an order of the Supreme Court, Appellate Term for the 2nd and 11th Judicial Districts, dated June 28, 1978, which reversed a judgment of the Civil Court, Kings County, entered September 20, 1977, and remanded the matter for further proceedings. Order affirmed, with $50 costs and disbursements. In our view, plaintiff should have sought relief by means of a proceeding in the Supreme Court, Kings County, pursuant to CPLR article 78 (see CPLR 7803, subds 1-3 and 7804, subd [b]; cf. Austin v Board of Higher Educ. of City of N. Y., 5 NY2d 430; Toscano v McGoldrick, 300 NY 156). In any event, after examining the merits of the dispute, we find that defendant had a right to adjust plaintiff’s retirement allowance to account for the improper withdrawal of money from the annuity savings account (see Administrative Code of City of New York, § B3-51.0; Matter of Newcomb v New York State Teachers’ Retirement System, 43 AD2d 353, affd 36 NY2d 953). Damiani, J. P., Cohalan, Margett and Martuscello, JJ., concur.