McLaughlin v. New York City Employees' Retirement System

Appellate Terms of the Supreme Court of New York

McLaughlin v. New York City Employees' Retirement System

96 Misc. 2d 58, 409 N.Y.S.2d 160, 1978 N.Y. Misc. LEXIS 2549

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 28, 1978

StatusPublished

This text of 96 Misc. 2d 58 (McLaughlin v. New York City Employees' Retirement System) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McLaughlin v. New York City Employees' Retirement System, 96 Misc. 2d 58, 409 N.Y.S.2d 160, 1978 N.Y. Misc. LEXIS 2549 (N.Y. Ct. App. 1978).

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Opinion

OPINION OF THE COURT

Memorandum.

Judgment reversed, without costs, and matter remanded to the court below for further proceedings.

The defendant correctly took into account, when computing plaintiff’s pension, the withdrawal of funds made by plaintiff from the pension fund. Although it appears that such with[59]*59drawal was made with the consent of the Board of Estimate and the Mayor, the defendant is not estopped from subtracting the actuarial equivalent of the deficiency caused thereby from the amount due plaintiff (see 21 NY Jur, Estoppel, Ratification and Waiver, § 83). However, as noted by this court on the prior appeal (96 Misc 2d 56), the delay in making payment to plaintiff was unreasonable in the absence of any explanation therefor. Consequently, the matter must be remanded to the court below for a determination of interest due for the period of unreasonable delay (see Post v New York City Employees’ Retirement System, 41 AD2d 606).

Concur: Buschmann, P. J., and Mangano, J.; Kirsch, J., taking no part.

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OPINION OF THE COURT

Memorandum.

Judgment reversed, without costs, and matter remanded to the court below for further proceedings.

The defendant correctly took into account, when computing plaintiff’s pension, the withdrawal of funds made by plaintiff from the pension fund. Although it appears that such with[59]*59drawal was made with the consent of the Board of Estimate and the Mayor, the defendant is not estopped from subtracting the actuarial equivalent of the deficiency caused thereby from the amount due plaintiff (see 21 NY Jur, Estoppel, Ratification and Waiver, § 83). However, as noted by this court on the prior appeal (96 Misc 2d 56), the delay in making payment to plaintiff was unreasonable in the absence of any explanation therefor. Consequently, the matter must be remanded to the court below for a determination of interest due for the period of unreasonable delay (see Post v New York City Employees’ Retirement System, 41 AD2d 606).

Concur: Buschmann, P. J., and Mangano, J.; Kirsch, J., taking no part.

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96 Misc. 2d 58, 409 N.Y.S.2d 160, 1978 N.Y. Misc. LEXIS 2549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclaughlin-v-new-york-city-employees-retirement-system-nyappterm-1978.

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