Applying for disability retirement

Applying for disability retirement
Grossman v McCall, App. Div., Third Dept., 262 AD2d 923, Motion for leave to appeal denied, 94 NY2d 765, Appeal on Constitutional grounds dismissed, 94 NY2d 796

Retirement and Social Security Law Section 62(aa)(2), allows a member of a public retirement system eligible for ordinary disability retirement to file an application for benefits if (1) the member is still in service at the time of the application or (2) the member applies within 90 days from the date of his or her discontinuance of service. The Appellate Division’s decision in the Grossman case illustrates that if an application for ordinary disability retirement is untimely, the application will be rejected -- even if there are extenuating circumstances.

The case arose after the Comptroller disapproved the application for ordinary disability retirement filed on behalf of Herbert E. Grossman by his wife. Grossman, a psychologist with the Bronx Developmental Services, sustained an injury at his home. He was terminated from his position effective July 27, 1990.

More than three years later his wife, Marsha Grossman, acting under a power of attorney, filed an application with the New York State Employees’ Retirement System [ERS] for ordinary disability retirement benefits. Although Mrs. Grossman proved that her husband “was mentally, psychiatrically and neurologically disabled after the accident,” the fact that the application was not filed within the time allowed by Section 62(aa)(2) proved critical. The Appellate Division said that Grossman’s illness did not toll the mandated filing period.

The court also rejected Mrs. Grossman’s contention that her husband had a property interest in the benefit and that the rejection of his application constituted a denial of a property right without due process. The Appellate Division said that filing of a timely application “constitutes a condition precedent to the ripening of any right to these benefits from which a claim of due process can arise.”

The decision also reports that ERS “received a request on [Grossman’s] behalf for an application for benefits by telephone on September 25, 1990 and that an application was sent to his home on October 3, 1990 -- when sufficient time existed for [Grossman] to have filed a timely application.” In addition, said the court, “the record reflects that [Grossman] did, in fact, have sufficient capacity to timely file [for], and therefore receive, social security disability benefits.”
.