March 11, 2019

Determining the compensation to be included when calculating the final average salary of a New York City Employees Retirement System member


When the New York City Employees Retirement Systems [NYCERS] failed to included the compensation Plaintiff had received from the City University of New York [CUNY] in addition to his compensation from the New York City Housing Authority [Authority] in the calculation of his final average salary for the purposes of determining the pension portion of his  retirement allowance, Plaintiff file a CPLR Article 78 petition naming NYCERS, the City of New York Department of Citywide Administrative Services, and CUNY as respondents [hereinafter jointly Defendants]. 

Plaintiff contended that NYCERS should have included his CUNY compensation in the determination of his final average salary. Supreme Court judgment granted Plaintiff's petition and directed NYCERS to include the salary the Plaintiff received from the CUNY in the calculation of his final average salary. Defendants appealed and the Appellate Division reversed the lower court's ruling, on the law, confirmed NYCERS' determination with respect to its calculation of Petitioner's final average salary and dismissed the proceeding "on the merits."

The Appellate Division's decision indicated that (1) Plaintiff had been employed as a full-time employee by the Authority; (2) as a part-time adjunct lecturer by CUNY; (3) had  joined the NYCERS on January 5, 1981; and (4) had never been a member of the Teachers' Retirement System of the City of New York [NYCTRS].

When Plaintiff filed his retirement application with NYCERS, NYCERS determined his "final average salary" only considering the compensation he received as a result of his employment with the Authority. When asked, NYCERS informed Plaintiff that the title of adjunct lecturer was a "non-eligible NYCERS title" and thus  his earnings while employed with CUNY were not included in the final average salary computation upon which the pension portion of his retirement allowance was based.

The Appellate Division held that contrary to the determination of the Supreme Court, Plaintiff employment with CUNY was not "city-service," as defined by Administrative Code §13-101(3).* The court explained that Supreme Court relied upon language contained in Administrative Code §13-563 which, in relevant part, "extended membership in NYCTRS to all lecturers employed by CUNY who serve on a "per hour, per diem, per monthly or per semester basis, . . . provided however that such lecturers are not members of any other retirement system supported in whole or in part by the city."

The Appellate Division opined that because the Plaintiff had elected to be a member of NYCERS, he was not eligible for membership in NYCTRS notwithstanding Plaintiff's employment with both the Authority and CUNY, concluding that Plaintiff was eligible for membership in either NYCERS or NYCTRS, but not both.

In the words of the Appellate Division, Supreme Court's "interpretation had the effect of rewriting the definition of "city-service" to include any city employee who is both NYCERS and NYCTRS eligible, regardless of which retirement system they choose, and created a new, unpermitted exception to the dual employment provisions in the Administrative Code."

As the maxim "expressio unius est exclusio alterius"** is typically followed by courts when determining the legislative intent or application of a statute, the Appellate Division concluded that "where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded."

The bottom line: the Appellate Division ruled that as "the determination that Plaintiff is not entitled to inclusion of his CUNY earnings in the calculation of his final average salary was not arbitrary or capricious or affected by an error of law, the Supreme Court should have denied the petition and dismissed the proceeding on the merits."


* The Appellate Division observed that because Plaintiff was eligible for membership in NYCTRS, his employment with CUNY was not "city-service" as defined by Administrative Code §13-101(3).

**  A "Law Latin" term meaning when one or more things of a class are expressly mentioned in a statute all others of the same class are excluded.

The decision is posted on the Internet at:


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