Opinion
12993 Index No. 151169/19 Case No. 2020-03027
01-28-2021
In the Matter of Bobby Farid HADID, Petitioner–Appellant, v. The CITY OF NEW YORK et al., Respondents–Respondents.
Law Office of Nathaniel B. Smith, New York (Nathaniel B. Smith of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.
Law Office of Nathaniel B. Smith, New York (Nathaniel B. Smith of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Kennedy, Mendez, JJ.
Judgment, Supreme Court, New York County (Verna L. Saunders, J.), entered January 17, 2020, denying the petition to annul the determination of respondent New York City Police Pension Fund dated October 30,2018, which denied petitioner's application for vested retirement benefits, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The article 78 court correctly determined that pursuant to Administrative Code of the City of New York § 13–256, petitioner, a former police sergeant with slightly more than 10 years of service with respondent New York City Police Department, lost any entitlement to vested retirement benefits upon his dismissal by operation of law due to his felony conviction of first-degree perjury, in accordance with Public Officers Law § 30(1)(e) (see Matter of Durudogan v. City of New York, 134 A.D.3d 452, 453, 20 N.Y.S.3d 75 [1st Dept. 2015] ). Despite vacatur of petitioner's conviction (see People v. Hadid, 121 A.D.3d 811, 993 N.Y.S.2d 754 [2d Dept. 2014] ), his reinstatement to the police force was denied following a hearing and determination that petitioner had committed misconduct unrelated to his perjury conviction that raised serious questions regarding his fitness to serve. As the decision to deny his reinstatement was not challenged, petitioner remained ineligible for vested benefits (see Durudogan, 134 A.D.3d at 454, 20 N.Y.S.3d 75 ).
Additionally, it is undisputed that petitioner failed to comply with the requirement under Administrative Code of City of N.Y. § 13–256(a)(4) that he file an application for benefits at least 30 days before discontinuance of service, and 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 retirement system.
Petitioner's contention that the forfeiture of his pension benefits is a harsh penalty that shocks one's sense of fairness, asserted for the first time on appeal, is unpreserved, and will not be considered (see Matter of Curry v. New York City Hous. Auth., 161 A.D.3d 578, 579, 78 N.Y.S.3d 18 [1st Dept. 2018] ).
We have considered petitioner's remaining arguments and find them unavailing.