| Matter of Lewandowski v New York State & Local Police & FireRetirement Sys. |
| 2010 NY Slip Op 00050 [69 AD3d 1027] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Paul Lewandowski, Petitioner, v NewYork State and Local Police and Fire Retirement System,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Rose, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of the Comptroller whichdenied petitioner's request to cancel his withdrawal from the optional retirement plan containedin Retirement and Social Security Law § 384-e.
Petitioner sustained a disabling injury while working as a firefighter. He and his employerthen agreed that he would retire within 30 days and, for doing so, the employer wouldsupplement his retirement benefits until he was 70 years of age. Allegedly as the result of adviceprovided by respondent's employees, petitioner filed paperwork simultaneously requestingwithdrawal from the 20-year retirement plan provided by Retirement and Social Security Law§ 384-d and the additional pension benefit provided by Retirement and Social SecurityLaw § 384-e, in which he had been enrolled, and applying instead for retirement underRetirement and Social Security Law § 375-i. Petitioner later realized that retirement underthe section 384-e plan would be more beneficial and sought to cancel his withdrawal from thatplan. Respondent [*2]denied his application. After a hearing, anddespite the Hearing Officer's decision that petitioner be permitted to cancel his withdrawal, theComptroller determined that, having validly withdrawn from the special retirement plans,petitioner did not have the option under the applicable statutes to rejoin them. Petitioner thencommenced this proceeding pursuant to CPLR article 78.
The Comptroller has exclusive authority to determine all applications for retirement benefits(see Retirement and Social Security Law § 74 [b]; Matter of Morgan v Hevesi, 46 AD3d1007, 1007 [2007], lv denied 11 NY3d 701 [2008]). His interpretation of the statutemust be upheld if it is not unreasonable, and his determination will be upheld if the underlyingfactual findings are supported by substantial evidence (see Matter of Schwartz v McCall,300 AD2d 887, 888 [2002]; Matter of Cassidy v Regan, 160 AD2d 1210, 1211 [1990]).Here, the applicable retirement statutes describe the time within which an eligible member ofrespondent must elect to join the optional retirement plan, how a member may withdraw such anelection, the benefits of the basic 20-year retirement plan and the further benefit accruing wheremembers have more than 20 years of service (see Retirement and Social Security Law§ 384-d [a], [b], [e]; § 384-e [b]). As the Comptroller noted, these statutes make noprovision for a member to rejoin the 20-year plan after withdrawal, and petitioner did not rejoinwithin the time periods specified for joining. Inasmuch as the statute's silence on this issue ofrejoining is an indication that it was purposely omitted by the Legislature (seeMcKinney's Cons Laws of NY, Book 1, Statutes § 74; Matter of Robert Bruce McLaneAssoc. v Urbach, 232 AD2d 826, 828 [1996]), the Comptroller's view that rejoining thespecial retirement plan is unauthorized was not irrational, unreasonable or contrary to thestatutory language (see Matter of Sush vNew York State Teachers' Retirement Sys., 2 AD3d 1127, 1128 [2003]; Matter ofKeller v Regan, 212 AD2d 856, 858 [1995]; Matter of Whitehill v New York StateTeachers' Retirement Sys., 142 AD2d 902, 904 [1988], affd 73 NY2d 944 [1989]).
Given the undisputed facts regarding petitioner's withdrawal and attempt to rejoin,respondent's determination is also supported by substantial evidence in the record. Althoughpetitioner contends that respondent is estopped from denying his application to cancel hiswithdrawal because his withdrawal was the result of erroneous advice received fromrespondent's representatives, the record includes conflicting evidence as to what advice actuallywas given to petitioner. Although the Hearing Officer credited petitioner's recollection of thatadvice, the Comptroller is not bound by the Hearing Officer's findings (see Matter of Wilson v DiNapoli, 52AD3d 931, 933 [2008]). In any event, even if the advice given by respondent'sadministrative employees was erroneous, it would not give rise to an estoppel here (seeMatter of Limongelli v New York State Employees' Retirement Sys., 173 AD2d 904, 906[1991]).
Spain, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.