Summary
In Adler v. New York State Teachers' Retirement System, 188 AD2d 732, 590 NYS2d 930 [3rd Dept., 1992] the Court found it was reasonable to exclude a substantial increase in compensation under Education Law § 501(11) where it was given in exchange for the elimination of Petitioner's right to receive $40,500 in termination pay upon his retirement, as the amendment to Petitioner's contract "served to artificially inflate petitioner's final average salary before his retirement" (id. at p. 733).
Summary of this case from Holbert v. New York State Teachers' Ret. Sys.Opinion
December 3, 1992
Appeal from the Supreme Court, Albany County (Prior, Jr., J.).
When petitioner received respondent's letter dated September 18, 1990 informing him what his final retirement benefits would be, the letter constituted a final and binding determination so as to commence the running of the four-month Statute of Limitations (see, CPLR 217, 7801). The fact that petitioner's attorney requested respondent to recalculate petitioner's retirement allowance did not, as Supreme Court held, serve to make the September 18, 1990 determination nonfinal especially where, as here, respondent is not mandated by statute or regulation to reconsider petitioner's case (see, Matter of Filut v New York State Educ. Dept., 91 A.D.2d 722, 723, lv denied 58 N.Y.2d 609; Matter of Seidner v Town of Colonie, Bd. of Zoning Appeals, 79 A.D.2d 751, 752, affd 55 N.Y.2d 613). Nor did respondent's conduct in responding to petitioner's request toll the four-month time period as it never indicated that it would make a de novo examination of the merits using new evidence (see, Matter of Rapuzzi v City of New York, Civ. Serv. Commn., 161 A.D.2d 715, lv denied 76 N.Y.2d 707; Matter of Cabrini Med. Ctr. v Axelrod, 107 A.D.2d 965; Matter of Seidner v Town of Colonie, Bd. of Zoning Appeals, supra, at 752). Instead, respondent's January 17, 1991 reply to petitioner was merely an explanation of why it did not include a certain lump-sum amount in its determination of petitioner's retirement allowance.
Were we to reach the merits of petitioner's case we would nevertheless find that respondent's determination had a rational basis. Here, as a result of an amendment to his contract in 1987, petitioner was given a substantial increase in his compensation in exchange for elimination of his right to receive $40,500 in termination pay upon his retirement. The amendment served to artificially inflate petitioner's final average salary before his retirement and, therefore, in arriving at petitioner's retirement allowance, it was reasonable for respondent to conclude that this amount should be excluded under Education Law § 501 (11) (see, Matter of Miller v New York State Teachers' Retirement Sys., 157 A.D.2d 890; Matter of Martone v New York State Teachers' Retirement Sys., 105 A.D.2d 511).
Mikoll, J.P., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.