New York Public Personnel Law: Appealing retirement system member service determinations

September 26, 2011

Appealing retirement system member service determinations

Appealing retirement system member service determinations
Marsh v NY State and Local Employees' Retirement System, App. Div., 291 AD2d 713

The Marsh decision addresses the procedure to follow when challenging a New York State and Local Employees' Retirement System's [ERS] determination regarding a retiree's "years of service credit" for the purpose of determining the individual's retirement allowance. The bottom line: the controlling statute of limitations requires that the individual file an Article 78 [Civil Practice Law and Ruled Article 78] petition within four months of his or her receipt of the "final determination" concerning the calculation of years of service credit.

Two members, Patricia M. Marsh and Nicholas J. Vianna, believed that they were entitled to more member service credit than ERS calculated for them upon their respective retirements.

ERS sent Marsh a letter dated April 25, 1997, advising her of its determination to prorate certain of her member service credit because she worked part time during various periods during her public employment. Marsh retired on March 30, 2000.

Vianna retired on January 1, 1997. ERS told him that he had 17.37 years of member service credit for the purposes of determining his retirement allowance.

Neither Marsh nor Vianna requested an administrative hearing and redetermination of their retirement benefits as determined by ERS. However, in January 2000 they filed a petition asking the court for a "declaratory judgment" that they were entitled to additional service credit.

The Appellate Division said that it was clear that Marsh and Vianna were simply challenging the calculation of their respective "service credits" by challenging ERS's "nearly 25-year-old internal administrative proration procedure as well as an administrative regulation codifying such procedure" set out in 2 NYCRR 370.

The court said that the procedure to be used if an individual believes that his or her member service credit has been miscalculated is expressly governed by Retirement and Social Security Law Sections 74 [b] and 374 [b].

These provisions, said the Appellate Division, require that a member or retiree "dissatisfied with any aspect of his or her retirement package" appeal to the Comptroller by seeking "a hearing and redetermination." If, following this appeal, the individual is dissatisfied with the Comptroller's final determination, he or she must bring a timely Article 78 proceeding if he or she wishes to seek any further relief. The statute of limitations for bringing an Article 78 action is four months.

The court pointed out that the "simple expedient" of calling their current action one for declaratory relief and "characterizing the matter as one of constitutional and contractual dimension" does not cure "this fatal inaction" on the part of both Marsh and Vianna. Clearly filing an Article 78 action in January 2000 was untimely, said the court, and it dismissed both Marsh's and Vianna's petitions.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.