December 28, 2020

A governmental entity may be subject to the doctrine of estoppel where the injured party has suffered manifest injustice as the result of bureaucratic confusion and deficiencies

Shortly after commencing their employment with the City of New York, the New York City Employees' Retirement System [NYCERS] placed the petitioners [Members] in this CPLR Article 78 action in the Basic Tier 4, 62/5 Retirement Plan [the 62/5 plan] which provided for retirement with full benefits at age 62 after at least 5 years of credited member service.

It was undisputed that the Members' enrollment in the 62/5 plan was in error and that the NYCERS was required by statute to enroll the Members in the Tier 4 57/5 Retirement Plan [the 57/5 plan] which Plan allows for retirement with full benefits at age 57 after at least 5 years of credited member service. The 57/5 Plan also requires greater employee contributions to the NYCERS.* The Members were in the 62/5 plan for more than 20 years, receiving annual statements from NYCERS confirming their membership in that plan.

However, in 2016 NYCERS advised the Members, then respectively 63 and 62 years of age, that their retirement plans were being changed to the 57/5 plan and that they owed additional member contributions because of their belated placement in that plan. The amount respectively due, said NYCERS was $20,198.41 and $24,346.69. This increased employee pension contributions was attributed to required contributions to the 57/5 plan that should have been deducted from their compensation since the time the Members joined NYCERS.

NYCERS also advised the Members that they could pay off their respective deficits "either in a lump sum or through periodic payroll deductions and that any unpaid balance remaining at the time of their retirement would permanently reduce their pension benefits."

The Members commenced this CPLR Article 78 proceeding seeking a court order directing NYCERS to reinstate them in their former 62/5 plan and to reimburse them for any additional pension contributions resulting from their involuntary switch into the 57/5 plan.

Supreme Court found that switching the Members from the 62/5 plan to the 57/5 plan violated Article V, §7 of the New York State Constitution. Further Supreme Court ruled that NYCERS long delay in discovering its error deprived the Members of "any opportunity to retire with full benefits before the age of 62," and it would be "an injustice to require them to make ...  payments when this benefit has been lost," notwithstanding their newly acquired 57/5 members status. NYCERS appealed the Supreme Court's decision.

The Appellate Division, agreeing with NYCERS that the Supreme Court erred in finding that switching the Members from the 62/5 plan to the 57/5 plan violated Article V, §7 of the New York State Constitution, modified the judgment of Supreme Court with respect to the Members' placement in the 57/5 plan in accordance with the applicable statute. The Appellate Division, however, sustained Supreme Court's applying the doctrine of estoppel thus requiring NYCERS to reimburse the Members for any funds collected pursuant to their placement in the 57/5 plan and barring its further collection of any such funds.

Citing Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Regan, 71 NY2d 653 and other decisions, the Appellate Division observed that Article V, §7 "provides in pertinent part that 'membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.'" The Appellate Division then observed that "under the New York State Constitution, '[t]he rights of public employees are . . . fixed as of the time the employee becomes a member of the system,' not at the time of retirement."

Further, opined the Appellate Division:

1. NYCERS is obligated to correct its errors and was required by statute to place the Members in the 57/5 plan;

2. The Members were never were eligible for membership in the 62/5 plan and thus were not entitled to receive benefits hereunder; and

3. The Members were required by law to be placed in the 57/5 plan from the outset of their employment and thus do not possess a constitutionally protected contractual right to be returned to the 62/5 plan.

However, the Appellate Division, noting "the extraordinary circumstances of this case," concluded that the Members had successfully established that NYCERS should be estopped from collecting additional funds resulting from their being placed in the 57/5 plan.

Although the Appellate Division conceded that "[a]s a general rule, estoppel may not be invoked against a governmental body to prevent it from performing its statutory duty or from rectifying an administrative error ... [t]his Court has invoked the doctrine of estoppel against governmental entities where ... 'misleading nonfeasance would otherwise result in a manifest injustice,' such as where the plaintiff has been the victim of bureaucratic confusion and deficiencies."

Pointing out that NYCERS' failure to discover its pension enrollment error for more than 20 years had effectively deprived the Members of any opportunity to avail themselves of the key benefit of early retirement, since they were both older than 62 when they were first advised of the NYCERS' error." The Appellate Division concluded that "[u]nder these circumstances, it would be manifestly unjust to permit NYCERS to collect additional employee contributions from the [Members] after its negligence rendered it impossible for them to obtain the primary benefit of the 57/5 plan."

The decision states that "Simply put, [NYCERS] may not negligently deny the [Members] the benefit of the 57/5 plan while simultaneously demanding from them the additional contributions associated therewith."

Sustaining that part of Supreme Court's determination stopping NYCERS from collecting such additional contributions and directing it to reimburse the Members for any such amounts it has already collected, the Appellate Division said it agreed with the Supreme Court's dismissal of NYCERS' cross motion to dismiss the Members' petition as amended.

* See Retirement and Social Security Law §604-d.

The decision is posted on the Internet at