Opinion
Index 2019/4349
12-02-2020
BERNICE CURRY-MALCOLM Petitioner-Plaintiff, v. NEW YORK STATE TEACHERS' RETIREMENT SYSTEM Respondent-Defendant
For Petitioner-Plaintiff: Bernice Curry-Malcolm, pro se For NYS Teachers' Retirement System: Ted O'Brien, Esq.
Unpublished Opinion
For Petitioner-Plaintiff: Bernice Curry-Malcolm, pro se
For NYS Teachers' Retirement System: Ted O'Brien, Esq.
DECISION ORDER & JUDGMENT
Hon. Gail A. Donofrio, Supreme Court Justice
Pending before the Court is petitioner's Article 78 proceeding challenging the June 26, 2019 final determination of respondent New York State Teachers' Retirement System (NYSTRS), which calculated petitioner's retirement service credit and earnings.
Petitioner joined NYSTRS on September 1, 1997, as a Tier 4 member, and remains an active member as no application for retirement has been made. Petitioner was employed by the Rush-Henrietta Central School District (R-H CSD), the Honeoye Falls-Lima Central School District (HF-L CSD) and the Rochester City School District (RCSD).
By Decision, Order and Judgment dated August 3, 2020, this Court dismissed the petition/complaint as against R-H CSD, HF-L CSD, RCSD, Brown Hutchinson, LLP, and Association of Supervisors & Administrators of Rochester.
Petitioner entered into a settlement agreement with HF-L CSD on July 16, 2007. As a result of the settlement agreement, petitioner received a lump sum payment of $97,427.28 from HF-L CSD. Although HF-L CSD reported this amount to NYSTRS as "ordinary compensation," NYSTRS determined that all payments received by petitioner under the settlement agreement with HF-L CSD were not pensionable because the payments constituted credit for time not worked in exchange for petitioner's resignation. As a result, NYSTRS removed all monies paid under the agreement and removed one month of service credit for the 2005 - 2006 school year, two months of service credit for the 2006 - 2007 school year, and one year of service credit for the 2007 - 2008 school year from petitioner's pensionable earnings.
In addition, NYSTRS was advised by the RCSD that during the 2017 - 2018 school year, petitioner took a paid administrative leave of absence from December 8, 2017 through April 23, 2018, and did not return to her position with the RCSD after the leave of absence. NYSTRS states it was advised by RCSD that petitioner was terminated on April 23, 2018. Respondent NYSTRS determined that because petitioner did not return to her position after her leave of absence, any service or salary was not pensionable and any earnings and service credit for this time period were therefore removed from petitioner's pensionable earnings. NYSTRS also determined that because petitioner's service for the 2017 - 2018 school year was less than 20 days (i.e., from November 20, 2017 through December 7, 2017), no service credit was earned for that year pursuant to 21 NYCRR § 5001.2.
It is settled law that a determination by NYSTRS, made without a hearing, must be upheld if it has a rational basis and was not arbitrary and capricious (Pell v Union Free School Dist. No. 7, 34 N.Y.2d 222, 231 [1974]; Wartko v New York State Teachers' Retirement Sys., 121 A.D.3d 1484, 1485 [3d Dept 2014]). In addition, NYSTRS's interpretation and application of the statutes and regulations for which it is responsible will be upheld if supported by a rational basis (John P. v Whalen, 54N.Y.2d 89, 95 [1981]; Martone v New York State Teachers' Retirement Sys., 105 A.D.2d 511, 512 [3d Dept 1984]). In determining what constitutes termination pay, compensation paid in anticipation of retirement, and/or average regular compensation, the substance of the transaction, not what the parties label it in an agreement, is what is determinative (Matter of Green v Regan, 103 A.D.2d 878 [3d Dept 1984], Holbert v New York State Teachers' Retirement Sys., 43 A.D.3d 530, 532 [3d Dept 2007]). Moreover, "employers and employees cannot agree to alter the rights and obligations of either with respect to the retirement system" (Holbert v New York State Teachers' Retirement Sys., 43 A.D.3d at 533).
Here, the Court concludes there was a rational basis for the determinations made by NYSTRS. In making its determinations, NYSTRS relied upon the employment and earnings information reported by the three school districts and information provided by RCSD with regard to petitioner's leave of absence and termination. The NYSTRS also relied upon the terms of the settlement agreement entered into between petitioner and HF-L CSD on July 16, 2007. Respondent considered all this information, applied the relevant rules and regulations set forth in 21 NYCRR§ 5001.1 et seq. and Education Law § 501, and made its determinations. As the determinations made by NYSTRS were rational and not arbitrary or capricious, this Court finds no reason to disturb them (Wartko v New York State Teachers' Retirement Sys., 121 A.D.3d at 1485). Based upon the foregoing, the petition/complaint is dismissed.
NOW, upon reading and considering the "Notice of Petition, Summons and Verified Complaint" and "Summons, Petition and Verified Complaint," dated October 22, 2019, with Exhibits; and respondent NYSTRS's Verified Answer and Return, dated August 27, 2020, with Exhibits A- K; the Affirmation of Rebecca L. Kannan, Esq., dated August 19, 2020; and respondent's Memorandum of Law, dated August 27, 2020;
AND, upon consideration of the aforementioned papers, oral argument, due deliberation, and consistent with this Decision, Order & Judgment, it is hereby
ORDERED and ADJUDGED, that petitioner's petition/complaint is DISMISSED.