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Wednesday, July 15, 2015

A member of the NYS Employees’ Retirement System must file a timely application in order to be eligible to receive a disability retirement allowance


A member of the NYS Employees’ Retirement System must file a timely application in order to be eligible to receive a disability retirement allowance
2015 NY Slip Op 04907, Appellate Division, Third Department

A correction officer [Officer] employed by the Department of Corrections and Community Supervision [DOCCS] received two notices of discipline and, as a result of those notices, was suspended without pay.

In February 2012, Officer entered into a settlement agreement [Settlement] with DOCCS in full satisfaction of both notices of discipline. The Settlement provided that, for a two-week period, Officer would be both placed on administrative leave with pay and "on [the] payroll." The parties also agreed that the Settlement did not provide for or allow petitioner, during that two-week period, to perform any of the services for DOCCS for which he had been hired.

During that two-week period and in March 2012, Officer applied for disability retirement benefits and performance of duty disability retirement benefits. A Hearing Officer found that both of the applications submitted by Officer were untimely as a matter of law. The Comptroller adopted the findings of the Hearing Officer and rejected both the Officer’s applications for disability retirement benefits and his application for performance of duty disability retirement benefits.

The Comptroller found that Retirement and Social Security Law [RSSL] §507-a(b)(2) required that "an application be filed within three months from the last date the member was being paid on the payroll" includes the requirement that such a member be receiving payments for services rendered while working. Notably, the courts have held that the same phrase "on the payroll," used in RSSL §605(b)(2) contains a requirement that payments “are for services rendered while working.”

Officer appealed the Comptroller’s determination.

The Appellate Division sustained the Comptroller’s decision explaining that “[t]he Comptroller is vested with the exclusive authority to resolve applications for any form of retirement benefits.”  If the Comptroller's application and interpretation of the relevant statutes are not irrational, unreasonable or contrary to the statutory language, his determination will be upheld by the court.

Considering the events giving rise to this action, the court said that Comptroller's interpretation of RSSL §507-a(b)(2) “is consistent with this Court's construction of the identical phrase in RSSL§605(b)(2) and legislative history supports the conclusion that the identical phrases in those two provisions should be given the same construction.” Thus, said the court, the Comptroller’s interpretation of RSSL §507-a(b)(2) as requiring payment for services rendered while working is not irrational, unreasonable or contrary to the statutory language.

Citing Officer’s concession that he did not render “any services while working” after August 2009, the “Appellate Division confirmed the Comptroller’s determination” that Officer’s March 2012 application for disability retirement benefits was untimely.

The court reach the same conclusion regarding Officer's application for benefits pursuant to RSSL §507-b, whereby "[t]o be effective, an application for performance of duty disability retirement under [RSSL] §507-b . . . shall be filed within two years after the member is first discontinued from service, as provided . . . under . . . subdivision a of [RSSL §] 63" and a member is only entitled to a retirement allowance if the application is timely in relationship to the member being "[a]ctually in service upon which his [or her] membership is based."

As Officer “did not perform the services that entitled him to membership after August 2009,” the Appellate Division also confirmed the Comptroller’s determination that his March 2012 application for performance of duty disability retirement benefits was untimely.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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