Supreme Court denied the CPLR Article 78 petition filed by a former New York City police officer [Plaintiff] seeking a court order annulling the determination of the New York City Police Pension Fund [Fund] denying Plaintiff's application for vested retirement benefits. Plaintiff appealed the Supreme Court's decision, which decision was sustained by the Appellate Division.
Plaintiff had been earlier terminated by operation of law pursuant to Public Officer Law §30(1)(e) upon his felony conviction of perjury in the first-degree. Although Plaintiff's conviction was subsequently vacated,* his application seeking reinstatement to the New York City Police Department [Department] following the vacation of his conviction was denied.
Citing Matter of Durudogan v City of New York, 134 AD3d 452, the Appellate Division ruled that Supreme Court had correctly determined that although Plaintiff had slightly more than 10 years of service with the Department, he forfeited any entitlement to vested retirement benefits upon his dismissal by operation of law pursuant to Public Officers Law §30(1)(e).
The court explained that notwithstanding the vacation of Plaintiff's conviction, the Department, following a hearing, determined that Plaintiff had "committed misconduct unrelated to his perjury conviction that raised serious questions regarding his fitness to serve" and denied his application for reinstatement. The Appellate Division ruled that as Plaintiff failed to appeal the Department's denial of his application for reinstatement, he "remained ineligible for any vested benefits."
Further, the Appellate Division noted that Plaintiff:
1. Failed to comply with the requirement under Administrative Code of City of NY §13-256(a)(4) that he file an application for benefits at least 30 days before "discontinuance of service;" and
2. Did not qualify under Administrative Code §13-256.1(a) to receive benefits "aside from his dismissal, since he lacked at least 20 years of service [in the New York City Police Pension Fund].
The Appellate Division also rejected Plaintiff''s contention that the forfeiture of his pension benefits was "a harsh penalty that shocks one's sense of fairness,"** because this argument was asserted for the first time on appeal and thus "is unpreserved ... and would not be considered."
* See People v Hadid, 121 AD3d 811
** See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222.
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