| Matter of Maillard v New York State Teachers' Retirement Sys. |
| 2008 NY Slip Op 10100 [57 AD3d 1299] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Glenn Maillard et al., Appellants, v New York StateTeachers' Retirement System et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered April 30, 2008 inAlbany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78,to review a determination of respondent New York State Teachers' Retirement System calculatingpetitioner Glenn Maillard's retirement benefit.
Petitioners are retired administrators from the William Floyd Union Free School District in SuffolkCounty. All are members of respondent New York State Teachers' Retirement System (hereinafterNYSTRS), with petitioner Glenn Maillard being in tier II and petitioners John Raptis and John Pidgeonbeing in tier I due to their differing dates of service. In calculating Maillard's final average salary forpurposes of determining his retirement benefit, NYSTRS excluded 2% of income received as anexpense allowance under the applicable collective bargaining agreements. NYSTRS concluded thatsuch income did not constitute regular compensation within the meaning of the Retirement and SocialSecurity Law. As a result, petitioners commenced this CPLR article 78 proceeding challenging thedetermination. Following joinder of issue, Supreme Court found that the determination was neitherarbitrary nor capricious, and that the proceeding was premature with respect to Raptis and Pidgeon.Accordingly, it dismissed the petition. Petitioners now appeal.[*2]
Preliminarily, we note that since NYSTRS's determination wasrendered without a hearing, our review is limited to whether it is arbitrary, capricious or without arational basis (see Matter of Moraghan v New York State Teachers' Retirement Sys., 237AD2d 703, 705 [1997]). Turning to the merits, a three-year final average salary is used for computingretirement benefits for tier II members under Retirement and Social Security Law § 443 (a). It isdefined as "the highest average annual regular salary earned by a member over a period covering threeconsecutive years of New York State service credit" (21 NYCRR 5003.1 [a]; see Retirementand Social Security Law § 443 [a]). Certain payments, such as those made in anticipation ofretirement, or for deferred compensation, sick leave or accumulated vacation credit, are specificallyexcluded (see Retirement and Social Security Law § 443 [a]). In this regard, thepertinent regulation states that "[r]egular salary earned shall exclude termination pay andpayments which are not part of the salary base and/or are not paid over a period of years; forexample, bonuses and one-time-only increments" (21 NYCRR 5003.1 [a] [emphasis added]).
It is significant that, in the case at hand, the 2% expense allowance is not found in the article of thecollective bargaining agreements governing administrators' salaries. Rather, it is found in an entirelyseparate article entitled "Fringe Benefits And Miscellaneous Compensations." The section describingthe benefit states that it is "an allowance for expenses incurred for attendance at various weekend andevening school-related meetings and activities." Given the unambiguous contractual languagedistinguishing this type of compensation from that provided to the administrators in the form of salary,NYSTRS could rationally conclude that it did not constitute regular compensation of the type to beincluded in calculating Maillard's final average salary. Accordingly, Supreme Court properly declined todisturb NYSTRS's determination (compareMatter of Van Haneghan v New York State Teachers' Retirement Sys., 6 AD3d 1019[2004]). Furthermore, we agree with Supreme Court that the proceeding is premature with respect toRaptis and Pidgeon inasmuch as they are in tier I and NYSTRS did not issue a final determinationconcerning their retirement benefits (see Matter of Smith v New York State Dept. of Labor,306 AD2d 745, 746 [2003]; Matter of Espada 2001 v New York City Campaign Fin. Bd.,302 AD2d 299 [2003]). We have considered petitioners' remaining contentions and find them to beunavailing.
Mercure, J.P., Spain, Carpinello and Stein, JJ., concur. Ordered that the judgment is affirmed,without costs.