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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

April 29, 2011

Proof of filing a timely application for disability benefits critical

Proof of filing a timely application for disability benefits critical
Jarek v McCall, 268 A.D.2d 654

It may prove critical to have proof that an application was filed with an agency as the Jarek case demonstrates.

John Jarek, a school custodian suffered a heart attack on January 31, 1993. Unable to work, Jarek resigned from his position on March 4, 1993.

Jarek filed an application for ordinary disability retirement with the New York State Employees’ Retirement System [ERS] within 90 days of his last day of service.

The application form was notarized and sent by first class mail to ERS. Not having heard from ERS, some six months later Jarek asked ERS to advise him of the status of his application. ERS told him that it never received his application form.

Ultimately, ERS denied Jarek ordinary disability retirement benefits because he had not filed a timely application form for benefits.*

Although an ERS hearing officer recommended that Jarek’s application be accepted since he had mailed it in a timely manner and through no fault of his own it had not be received by ERS, the Comptroller sustained ERS’s initial decision denying Jarek benefits. Jarek appealed.

Did the fact that Jarek mailed his application in a timely manner qualify him for benefits? The Appellate Division said because Jarek could not prove he had filed his application within 90 days of his last day of service, the Comptroller’s determination must be sustained.

The court pointed out that in other situations it had held that simply mailing an application for benefits does not constitute filing of the required application form. According to the ruling, filing for the purposes of establishing eligibility for benefits “only occurs upon actual delivery to and receipt” by ERS.

Thus, if the application is mailed, some means of demonstrating that the application was received by the System is critical to an individual’s ability to prove that his or her application for benefits was filed within the time period required.

Upholding the Comptroller’s decision that Jarek’s “act of mailing his application for ordinary disability retirement benefits” was not the equivalent of filing such an application, the Appellate Division said that this determination was reasonable and thus must be sustained under the circumstances.

The court said that “[w]hile the result is harsh, it is one the law compels.

The Appellate Division noted that Jarek claimed that he “did everything within his power to meet the 90-day deadline ....”

However, said the court, Jarek “failed to use available mailing methods which would have provided him with notice of [ERS’s] receipt (or lack thereof) of his application and further waited over six months to check on its status.”

It is clearly prudent to make certain that the individual can prove that he or she timely filed such an application.

Had Jarek used certified or registered mail -- or delivered his application in person and obtained a receipt -- he would have had a better chance of prevailing even if ERS had lost his application after receiving it. 

* Sections 62 and 63 of the Retirement and Social Security Law require a member to file his or her application for ordinary disability retirement benefits within 90 days of his or her last day of service. Accordingly, Jarek had to file his application within 90 days of March 4, 1993.

Public Personnel Law E-books

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A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. Click on for more information.

The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on