The doctrine of estoppel will not serve to provide eligibility for retirement benefits where the relevant statute clearly shows claimant does not qualify for such benefit

Petitioner, a member of the New York State and Local Employees' Retirement System, began working as a correction officer  in 1980 at what is now the Department of Corrections and Community Supervision [DOCCS]. In June 2015, while still employed by DOCCS, Petitioner accepted a part-time job with the Village of Dannemora and in September 2015, Petitioner applied for service retirement pursuant to Retirement and Social Security Law Article 15 based on his employment with the Village. Petitioner's retirement application, however, did not indicate his employment as a correction officer with DOCCS. 

Petitioner resigned from his position as a correction officer with DOCCS on September 25, 2015 while Petitioner's last day of work with the Village was on September 28, 2015. Petitioner's Article 15 service retirement from the Village took effect two days later, September 30, 2015. 

In May 2017, after Petitioner had been receiving retirement benefits pursuant to Article 15, Petitioner  applied for Retirement and Social Security Law Article 14 Performance of Duty Disability Retirement benefits based upon injuries he purportedly sustained as a correction officer pursuant to Retirement and Social Security Law §507-b. 

The Retirement System initially approved Petitioner's application, but thereafter rescinded such approval, explaining that "a performance of duty disability retirement was available to, as relevant here, only members 'in the [R]etirement [S]ystem . . . based on employment as a correction officer.'" 

The Retirement System explained that Petitioner had left his position with DOCCS on September 25, 2015, and that his employment with the Village ended three days later, after which he retired under Article 15. 

Following a hearing and redetermination, a Hearing Officer sustained the Retirement System's denial of performance of duty disability retirement benefits sought by Petitioner. 

The Retirement System accepted the Hearing Officer's findings of fact and conclusions of law, and this CPLR article 78 proceeding ensued. Petitioner appealed the Retirement System's decision. 

The text of Appellate Division's ruling affirming the Retirement System decision is set out below: 

In the Matter of Charles Mussaw, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Decided and Entered: August 6, 2026

CV-25-0282

Calendar Date: May 12, 2026

Before: Garry, P.J., Pritzker, Reynolds Fitzgerald, Powers And Corcoran, JJ.

Law Firm of Alex Dell, PLLC, Albany (Alex C. Dell of counsel), for petitioner.

Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.

Reynolds Fitzgerald, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for performance of duty disability retirement benefits.

Petitioner, a member of the New York State and Local Employees' Retirement System, began working as a correction officer for what is now the Department of Corrections and Community Supervision (hereinafter DOCCS) in 1980. In June 2015, while still employed with DOCCS, petitioner accepted a part-time job with the Village of Dannemora, Clinton County. In September of that same year, petitioner applied for service retirement under Retirement and Social Security Law article 15, based on his employment with the Village. Petitioner's application did not reference his employment as a correction officer. He resigned from his position as a correction officer later that month, on September 25, 2015, and his last day working for the Village was September 28, 2015. His article 15 service retirement from the Village took effect two days later.

Approximately 20 months later, in May 2017, after petitioner had been receiving benefits under article 15, he applied for Retirement and Social Security Law article 14 performance of duty disability retirement based upon injuries he purportedly sustained as a correction officer (see Retirement and Social Security Law § 507-b). The Retirement System initially approved his application, but thereafter rescinded it, explaining that a performance of duty disability retirement was available to, as relevant here, only members "in the [R]etirement [S]ystem . . . based on employment as a correction officer." The Retirement System observed that petitioner had left his position with DOCCS on September 25, 2015, and that his employment with the Village ended three days later, after which he retired under article 15. Following a hearing and redetermination, a Hearing Officer upheld the denial. Respondent accepted the Hearing Officer's findings of fact and conclusions of law, and this CPLR article 78 proceeding ensued.

Section 507-b, part of article 14 of the Retirement and Social Security Law, provides, in relevant part, that "[a]ny member in the uniformed personnel in institutions under the jurisdiction of [DOCCS] . . . who becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of," among other things, "an injury, sustained in the performance or discharge of [their] duties . . . shall be paid a performance of duty disability retirement allowance equal to that which is provided in [Retirement and Social Security Law § 63]" (Retirement and Social Security Law § 507-b [a]). "[T]he statute was clearly intended to compensate correction officers who, because of the risks created by their daily contact with certain persons who are dangerous and profoundly anti-social[,] become permanently disabled" (Matter of Laurino v DiNapoli, 132 AD3d 1057, 1058 [3d Dept 2015] [internal quotation marks, brackets, ellipsis and citations omitted]). In contrast, "Retirement and Social Security Law article 15 provides a comprehensive scheme of retirement benefits through which" some members of the Retirement System, including village employees, "may receive a pension upon retirement from service . . . after meeting specified age and length-of-service requirements" (Matter of Roberts v Murphy, 2 NY3d 641, 644 [2004]). However, certain members of uniformed services are specifically excluded from Retirement and Social Security Law article 15 (see Lynch v City of New York,23 NY3d 757, 766 [2014]), including — contrary to petitioner's suggestion on this appeal — correction officers employed by DOCCS (see Retirement and Social Security Law § 600 [a] [2] [a]).

Petitioner argues, in effect, that there is no language in the relevant statutory provisions precluding a member of the Retirement System from making simultaneous — or in this case, consecutive — applications under both section 507-b of article 14 and article 15. Therefore, petitioner contends that respondent's denial of his application on the basis that his final employment was with the Village, rather than DOCCS, was not a reasonable interpretation of the pertinent statutes and must be set aside. We disagree with this flawed logic and confirm respondent's determination.

Respondent "is vested with the exclusive authority to resolve applications for retirement benefits and the determination must be upheld if the interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Lurry-Carter v New York State & Local Retirement Sys., 248 AD3d 1471, 1472 [3d Dept 2026] [internal quotation marks and citations omitted]; see Retirement and Social Security Law § 74 [b]; see e.g. Matter of Gallante v DiNapoli, 228 AD3d 1169, 1170 [3d Dept 2024], lv denied 42 NY3d 909 [2024]). When respondent's determination turns upon a question of statutory interpretation, this Court's principal responsibility "is to ascertain and give effect to the intention of the Legislature" (Matter of Walsh v New York State Comptroller, 34 NY3d 520, 524 [2019] [internal quotation marks and citations omitted]; accord Matter of Strzepek v DiNapoli, 227 AD3d 1353, 1355 [3d Dept 2024]).

As the record in this case confirms — specifically, testimony from respondent's director of disability services in its division of retirement — respondent has consistently made an initial determination of whether a member of the Retirement System is eligible for benefits under article 14 or, instead, under article 15 based on the member's job title at the time of retirement (see Matter of Earle v Office of the N.Y. State Comptroller, 128 AD3d 1317, 1318 [3d Dept 2015]). As the director of disability services explained, petitioner had to give up his membership status as a DOCCS correction officer in order to be eligible for article 15 benefits (see Retirement and Social Security Law § 600 [a] [2] [a]). By making this election, petitioner necessarily became ineligible for benefits under article 14, including a performance of duty disability retirement under section 507-b.

Other provisions of the Retirement and Social Security Law support respondent's reading of section 507-b. There is no evidence that the Legislature intended to afford former correction officers an opportunity to apply for performance of duty disability benefits after they have left their employment with DOCCS for an article 15 position and applied for service retirement based on that new job.FN1 Numerous provisions in the Retirement and Social Security Law recognize that applicants may submit "simultaneous[ ]" applications for both service retirement benefits and benefits specific to a disability sustained during their employment if they follow certain procedures — namely, that the service retirement application is filed without prejudice to the simultaneous application for disability retirement (Retirement and Social Security Law § 63 [f]; see e.g. Retirement and Social Security Law §§ 62 [c]; 507-f [f]; 507-h [g]). Even if such a simultaneous application was authorized here, petitioner's application for performance of duty disability retirement benefits was made nearly two years after he successfully applied for service retirement benefits, and his service retirement application did not state that it was without prejudice to a simultaneous application. Moreover, if, as petitioner posits, the Legislature intended to permit former correction officers who transitioned to municipal service before retirement to apply for service benefits under article 15 without prejudice to applications for performance of duty disability retirement benefits under section 507-b, it could have included a provision in section 507-b authorizing such applications, as the Legislature has included in various other provisions in the Retirement and Social Security Law. Accordingly, respondent's determination was neither irrational nor inconsistent with the applicable statutory provisions (see Matter of Earle v Office of the N.Y. State Comptroller, 128 AD3d at 1318). Relatedly, because there is no dispute that petitioner's job at the time of retirement was with the Village, not with DOCCS, substantial evidence plainly supports respondent's denial of his application for performance of duty disability retirement benefits on the basis that his final job title did not qualify for article 14 benefits.

Finally, petitioner argues that his application should not have been denied because he was given bad advice about his retirement options by employees of respondent and/or the Village. However, it is well settled that "the doctrine of estoppel will not provide eligibility to retirement benefits where by statute a person clearly does not qualify, even if the advice of the administrative employees was erroneous" (Matter of Radwan v DiNapoli, 237 AD3d 1342, 1345 [3d Dept 2025] [internal quotation marks, brackets and citations omitted]). We have considered petitioner's remaining contentions and reject them as meritless.

Garry, P.J., Pritzker, Powers and Corcoran, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Footnote 1 

Both the record in this case and prior appeals before this Court make evident that such a transition in job titles, with the aim of maximizing pension benefits under the most favorable plan available to a particular Retirement System member, is commonplace, albeit not always successful (see generally Matter of Vladyka v DiNapoli, 238 AD3d 1362 [3d Dept 2025]; Matter of Radwan v DiNapoli, 237 AD3d 1342 [3d Dept 2025]; Matter of Strzepek v DiNapoli, 227 AD3d 1353). Our recent decision in Matter of Ballard v DiNapoli (250 AD3d 1207 [3d Dept 2026]) demonstrates the consistency of respondent's rule: where respondent determines that an applicant did not have bona fide paid employment to qualify them for benefits under article 15, respondent will nevertheless grant benefits under article 14 because the applicant's final legitimate job title was as a correction officer.

Statutory requirements conditioning suit against a governmental entity must be strictly construed

In this CPLR Article 78 Petitioner sought judicial review of a determination of the City of Newburgh [City] to adopt the findings and recommendation of a disciplinary hearing officer made pursuant to Civil Service Law §75 in which the hearing officer found the Petitioner guilty of certain charges of misconduct and recommended the termination of Petitioner's employment as a City police officer. Petitioner appealed the City's decision.

City had filed an answer to Petitioner's appeal with objections in point of law, including that the Petitioner failed to serve a notice of timely claim as required by Section C6.47 of the City's Charter. Petitioner thereupon moved for leave to serve a late notice of claim. 

Supreme Court granted Petitioner's motion for leave to serve a late notice of claim and transferred the proceeding to the Appellate Division pursuant to CPLR 7804(g). The Appellate Division, however, vacated so much of the Supreme Court's order as granted the Petitioner's motion for leave to serve a late notice of claim, dismissed the Article 78 proceeding and ordered one bill of costs to the City.

The Appellate Division, citing Clayton Indus., Inc. v City of Newburgh, 17 AD3d 309, noted that Section C6.47(A) of the City's Charter provides that with respect to non-tort claims:

1. No action or special proceeding shall be maintained against the City unless "a written verified claim ... was served on the City ... within three months after the accrual of such claim";

2. Service of a notice of claim is a condition precedent to maintaining an action or proceeding against the City; and

3. Statutory requirements conditioning suit against a governmental entity must be strictly construed.

Noting that it is undisputed that Petitioner failed to serve a notice of claim within three months after his claim accrued as required by Section C6.47 of the City Charter , "unlike other notice statutes, section C6.47 of the City Charter for the City of Newburgh does not provide courts with the authority to extend the time for the service of a notice of claim arising upon nontort claims."

In the words of the Appellate Division, "...  since this proceeding is not founded upon tort, the Supreme Court was without authority to grant the [Petitioner's] motion for leave to serve a late notice of claim ... and it should have dismissed the proceeding on the ground that the [Petitioner] failed to timely serve a notice of claim as required by section C6.47 of the City Charter for the City of Newburgh".

Click HERE to access the Appellate Division's decision posted on the Internet.

Determining if statements between an employee and the employee's employer constitute slander per se

In this action, Plaintiff and third-party defendant, a Town employee [Employee], became embroiled in a personal dispute after the Town prohibited Employee from using the Town's equipment to move certain gear associated with a concession stand business that Employee operated on property maintained by the Town.

Employee sought and obtained a decision by a New York State Supreme Court justice which denied the Town's motion for summary judgment dismissing Employee's complaint and granted Employee's cross-motion for summary judgment on the Employee's complaint, which asserts a single cause of action, slander per se. Town appealed the Supreme Court's rulings.

The Appellate Division unanimously reversed the Supreme Court's decision "on the law without costs", granted Town's motion to dismiss the Employee's appeal and dismissed Employee's complaint.

Turning to the issue of whether the Employee's statements made during the incident are actionable, the Appellate Division said it must consider the statements "in [their] applicable context" and "in terms of [their] effect upon the average listener" and [to] determine whether a reasonable listener would consider the statements to connote fact or nonactionable opinion, we must evaluate:

"(1) whether the specific language in issue has a precise meaning which is readily understood; 

"(2) whether the statements are capable of being proven true or false; and 

"(3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal . . . listeners that what is being . . . heard is likely to be opinion, not fact".

In the instant matter the Appellate Division concluded that the Employee's inflammatory insults "are nonactionable rhetorical hyperbole, particularly given the rhetorical manner in which the statements were uttered".

Click HERE to access the Appellate Division's decision posted on the Internet.