A correction officer [Plaintiff] for a county sheriff's department [Employer] filed an application for service retirement benefits under a special retirement plan set out in §89-f of the Retirement and Social Security Law claiming creditable service for a period that included the period from December 10, 1990 to February 19, 2016. Based on information received from Plaintiff's Employer, the Retirement System deemed Plaintiff eligible for §89-f benefits and he began receiving retirement benefits based on such data.
A subsequent federal investigation resulted in Plaintiff's indictment and conviction of theft of funds and wire fraud stemming from Plaintiff's submission of time sheets and overtime slips indicating that he was working for Employer when he was "actually playing golf, frequenting a casino or engaging in political activities," all of which resulted in Plaintiff's defrauding Employer of approximately $200,000.
Employer advised the Office of the State Comptroller of Plaintiff's fraudulent time submissions. Ultimately the Retirement System concluded that Plaintiff had only 24.50 years of total creditable member service and discontinued his §89-f retirement allowance benefits. Plaintiff requested hearing and redetermination of the System's action.
A Hearing Officer found that the compilation of member service credit report prepared by Plaintiff's attorney failed to demonstrate that Plaintiff had achieved the 25 years of total creditable service required and, further, that neither standby hours nor overtime hours were proper for inclusion in calculating Plaintiff's total member service credit.
The Comptroller sustained the denial of Plaintiff's application for service retirement benefits whereupon Plaintiff initiated this CPLR Article 78 proceeding challenging the Comptroller's decision.
Addressing the merits of Plaintiff's appeal, the Appellate Division noted that "[t]he comptroller is charged with the responsibility of determining service credits for retirement purposes and [the] determination will be upheld if rational and supported by substantial evidence", citing Matter of Rispoli v DiNapoli, 180 AD3d 1127. Further, the court opined that "it is the [Plaintiff] who bears the burden of demonstrating entitlement to the additional retirement service credit claimed".
Rather than testifying or calling any witnesses from the Employer to attest to the fact that, even after deducting the fraudulent time entries previously reported Plaintiff still had accrued sufficient total creditable member service to retire under the provisions of Retirement and Social Security Law §89-f, Plaintiff, instead, "opted to rely upon a one-page summary of total creditable member service prepared by his attorney who, in turn, utilized a selection of [Plaintiff's] payroll records to express his opinion that Plaintiff had accrued the 25 years of total creditable member service required."
The Appellate Division, as had the Hearing Officer, observed "absent detailed testimony as to the manner in which such calculations were performed, counsel's unsubstantiated interpretation of the limited payroll records supplied was insufficient to demonstrate [Plaintiff's] entitlement to the claimed [member] service credit — regardless of the nature of the hours utilized (regular, standby or overtime)."
As Plaintiff failed to meet his burden of proof in this regard, the Appellate Division opined that "his application for retirement benefits was properly denied upon this ground."
Despite Plaintiff's arguments to the contrary, the court explained that Plaintiff ignored the fact that he, not the Retirement System, bore the burden of proof at the administrative hearing. As Plaintiff's counsel's one-page interpretation of selected portions of Plaintiff's payroll data was insufficient to establish the total required creditable member service claimed by Plaintiff, the Appellate Division said that it "need not consider whether, as [Plaintiff] contends, his standby or overtime hours should have been included in [his] counsel's calculations" and dismissed Plaintiff's appeal.
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