O'Dwyer v. New York City Employees' Retirement System

69 A.D.2d 779, 415 N.Y.S.2d 20, 1979 N.Y. App. Div. LEXIS 11390

Opinion

Order and judgment (one paper), Supreme Court, New York County, entered November 24, 1978, dismissing the petition to vacate respondent’s determination denying petitioner retirement, unanimously affirmed, without costs or disbursements. Petitioner’s membership in the New York City Employees’ Retirement System, which he entered on January 1, 1964, was terminated by operation of law on December 31, 1970, the fifth anniversary of the expiration of his term of office as a member of the city council. (See Administrative Code of City of New York, § B3-31.0, subd 1.) And although petitioner rejoined the system eight years after he had left city service, when he commenced his term as president of the city council, he became a member for the second time pursuant to article 11 of the then recently enacted Retirement and Social Security Law (§§ 440, 441), which requires a minimum of five years of credited service after July 1, 1973, as eligibility for nondisability retirement. Thus, when petitioner’s service with the city terminated on December 31, 1978, he lacked the eligibility requirement of five years’ minimum service. We are not persuaded, however, that petitioner terminated his membership pursuant to subdivision 3 of section B3-31.0 of the Administrative Code, as respondent contends, when he withdrew the accumulated deductions from his 1964-1965 service from the retirement system at respondent’s insistence. Concur—Kupferman, J. P., Fein, Sullivan and Markewich, JJ.