Opinion
January 23, 1996
Appeal from the Supreme Court, New York County (Jane Solomon, J.).
Although the IAS Court incorrectly determined that plaintiff's action was time-barred by the four-month Statute of Limitations applicable to CPLR article 78 proceedings ( see, Koerner v State of New York, 62 N.Y.2d 442, 446-447), it properly concluded that, on the merits, defendant's practice of assigning a retiree the maximum retirement allowance, which precludes a death benefit in the event the retiree does not elect a pension option within a 60-day deadline, was not violative of either plaintiff's husband's pension contract with defendant or any fiduciary duties owed him by defendant, and that plaintiff is neither a third-party beneficiary of the pension contract nor owed any fiduciary duties by defendant. Moreover, decedent accepted the maximum retirement allowance for three and one half years prior to his demise.
Concur — Rosenberger, J.P., Ellerin, Nardelli, Williams and Tom, JJ.