Piatko v. Bethlehem Steel Corp.

149 A.D.2d 910

Opinion

— Judgment unani mously affirmed with costs, in accordance with the following memorandum: We agree with the trial court’s determination that the plan administrator acted arbitrarily and capriciously in denying plaintiffs rule-of-65 pension benefits claim because defendant failed to advise plaintiff of his rights and obligations under the pension plan. We note, however, that pursuant to the Supreme Court’s recent holding in Firestone Tire & Rubber Co. v Bruch (489 US —, 103 L Ed 2d 80), the trial court’s determination should have been based on a de novo review. Under this standard, the result reached by the trial court is clearly warranted. Since plaintiff was the prevailing party, the award of attorney’s fees was proper (see, 29 USC § 1132 [g]; Ford v New York Cent. Teamsters Pension Fund, 506 F Supp 180, affd 642 F2d 664). (Appeal from judgment of Supreme Court, Erie County, Notaro, J.—pension benefits.) Present—Dillon, P. J., Callahan, Green, Pine and Lawton, JJ.