Pursuant to Retirement and Social Security Law §§ 62 Retire. Soc. Sec. and 362 Retire. Soc. Sec., petitioner had 90 days from his last date of service (March 4, 1993) to file an application for ordinary disability retirement benefits (see, Matter of Carmody v. McCall, 261 A.D.2d 765, 691 N.Y.S.2d 208, 209; Matter of Callace v. New York State Empls. Retirement Sys., 140 A.D.2d 756, lv denied 72 N.Y.2d 806). The Retirement and Social Security Law mandates that every application for benefits be filed with respondent (see, Retirement and Social Security Law § 74 Retire. Soc. Sec.[a]). In analogous contexts, this court has held that simply mailing an application does not constitute filing; rather, filing only occurs upon actual delivery to and receipt by respondent (see, e.g., Matter of Klein v. Regan, 165 A.D.2d 944, 945; Matter of McBride v. Regan, 125 A.D.2d 797, 798; see generally, Matter of Feinberg v. Regan, 100 A.D.2d 711, 712, lv denied 63 N.Y.2d 601; Matter of Hauenstein v. New York State Empls. Retirement Sys., 72 A.D.2d 632, 632-633; Matter of Robillard v. Levitt, 44 A.D.2d 611, 612). Thus, respondent's construction of Retirement and Social Security Law § 74 Retire. Soc. Sec.(a) as excluding petitioner's act of mailing his application for ordinary disability retirement benefits as the equivalent of filing is reasonable (see, id.) and must be upheld as it is supported by substantial evidence (see, e.g., Matter of Keller v. Regan, 212 A.D.2d 856, 858). While the result is harsh, it is one the law compels.
Simply mailing an application is not the equivalent of filing; it is filed only when it is delivered to and received by the appropriate official (see, Matter of Robillard v. Levitt, 44 A.D.2d 611, 612; see also, Matter of McBride v. Regan, 125 A.D.2d 797, 798). Accordingly, even if the application was in fact delivered to Fabbie, this was not equivalent to filing it with respondent (in the absence of evidence that respondent had designated Fabbie as his agent for receipt of applications) (see, Matter of Feinberg v. Regan, 100 A.D.2d 711, 712, lv denied 63 N.Y.2d 601). Since petitioner's proof fails to establish that respondent received the purported first application, the appealed-from determination is in all respects rational. Determination confirmed, and petition dismissed, without costs.
The Comptroller is correct in his determination that case law holds that a document is "filed" only when it is delivered to or received by the appropriate official (see, e.g., Matter of Robillard v. Levitt, 44 A.D.2d 611, 612). An application for benefits pursuant to Retirement and Social Security Law § 363 (a) (3) is required to be filed within two years of a first discontinuance from service. Placing the application in an envelope in the mail is not the equivalent of filing; filing is accomplished when the application is received by the Comptroller (Matter of Feinberg v. Regan, 100 A.D.2d 711, 712, lv denied 63 N.Y.2d 601; Matter of Hauenstein v. New York State Employees' Retirement Sys., 72 A.D.2d 632, 633). Petitioner's contention that the statute is satisfied when an application is "made" not later than two years after the member is first discontinued from service is unpersuasive. Petitioner maintains that since the Legislature specifically used the term "filing" in various parts of the statute (see, Retirement and Social Security Law § 363 [a], [c]), use of the phrase "may be made" in section 363 (a) (3) was intended to create a distinction between the terms.
To have an "effective" application for service retirement on file during the 90-day open period, an employee had to file his application for retirement benefits no later than July 1, 1985. On June 28, 1985, petitioner mailed his application for retirement benefits by certified mail, return receipt requested, at the post office in the City of North Tonawanda, New York. It was stamped received by the Comptroller's office on July 2, 1985. At that time, the Comptroller's policy was that an application was "filed" upon receipt by his office, and not at the time the document was placed in the mail (see generally, Matter of Feinberg v Regan, 100 A.D.2d 711). Consequently, the Comptroller determined that the petitioner's application was received one day too late for him to qualify for the early retirement incentive program, and so notified him. Petitioner requested an administrative hearing for a redetermination and the hearing was commenced on March 21, 1986, before Hearing Officer Morris Aarons. While the administrative proceeding was pending, Laws of 1986 (ch 177) was approved by the Governor on June 23, 1986.