A New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option
Batorksy v New York State Off. of the Comptroller, 2016 NY Slip Op 02698, Appellate Division, Third Department
Victor H. Batorksy filed an Article 78 petition seeking a review a determination of the Deputy Comptroller denying his request to change his retirement election option.
Batorksy, a retired state employee and member of New York State and Local Retirement System [ERS], was formerly married to “interested party” Angela M. Batorksy [AMB]. AMB is also a retired state employee and an ERS member. A 2002 judgment of divorce and incorporated stipulations of settlement in a domestic relations order required Batorksy to pay a share of his pension benefits to AMB calculated according to the formula set forth in Majauskas v Majauskas, 61 NY2d 481. This domestic relations order was subsequently amended a number of times.*
The Appellate Division characterized Batorksy's several challenges to Supreme Court's determination denying his Article 78 petition as “fundamentally premised on the theory that the Retirement System improperly refused to allow him to change AMB's survivorship benefit.”
Batorksy contended that a 2011 domestic relations order, the last in a series of amendments to orders following the 2002 domestic relations order, should be amended to alter the survivorship benefit and that the Retirement System improperly refused to permit him to do so. The Retirement System had determined that the provisions of a 2005 domestic relations controlled.
The Appellate Division said that his arguments were unavailing as Batorksy as was not entitled to the relief he seeks. The court explained that the Comptroller has exclusive authority to determine the validity of applications by Retirement System members for any form of retirement benefits. In making such determinations, the Comptroller's interpretation of the statute that he or she is charged with enforcing must be sustained if it is not “irrational, unreasonable or inconsistent with the governing statute.”
It was Batorksy's burden to prove that the Retirement System incorrectly determined that the percentage of the option specified in the 2005 domestic relations order became irrevocable on October 31, 2010. In the words of the Appellate Division, “[t]his burden was not met.”
The governing statute, RSSL §90[e], provides that "an option selection previously filed by a member . . . may be changed no later than  days following the date of payability of his or her retirement allowance." The date of payability is "the first day of each and every month beginning on the first day of the month following the effective date of retirement" and Batorksy's retirement became effective on September 25, 2010.
Thus, said the Appellate Division, the date of payability was October 1, 2010, and October 31, 2010 was 30 days after the date of payability. There is no statutory exception permitting a retiree to change a valid option election after the time to make such an election has expired, and "[t]he absence of statutory prohibition does not permit [this Court] to imply the power with which the Comptroller must be endowed to conform legally with . . . [Batorksy's] present demand."
Accordingly, the Retirement System’s determination that the option election contained in the 2005 domestic relations order became irrevocable on October 31, 2010 was neither irrational nor unreasonable, and must be sustained.
On another point, the Appellate Division noted that there apparently was “[a]n erroneous statement by [the Employees’ Retirement System] in a memorandum of law submitted to Supreme Court to the effect that the Retirement System rejected the 2011 order” The court said that this “did not constitute a concession or admission, but was merely a typographical error, clearly contradicted by the record.”
* The Appellate Division’s decision sets out in some detail the events leading to the instant Article 78 action and appeal.
The decision is posted on the Internet at: