Opinion
December 10, 1992
Appeal from the Supreme Court, Albany County (Cheeseman, J.).
Supreme Court properly granted respondents' motion to dismiss the proceeding on the basis of petitioner's failure to exhaust his administrative remedies. Assuming that petitioner is correct in his assertion that his employer lacked standing to seek review of respondent Comptroller's initial decision awarding petitioner accidental and performance of duty retirement benefits (see, e.g., Matter of Barson v Regan, 177 A.D.2d 21), the Comptroller's responsibilities under Retirement and Social Security Law § 111 (b) would not be altered. That statute requires that the Comptroller, upon discovery, correct "any change or error in any record" of respondent State Police and Fire Retirement System (id.; see, Matter of Boudreau v Levitt, 67 A.D.2d 1053, lv denied 47 N.Y.2d 706). The Comptroller was not relieved of his duties under the statute because the error in this case was not discovered until after the initial award of benefits (see, Matter of Davidson v New York State Local Empls. Retirement Sys., 185 A.D.2d 513; Matter of Boudreau v Levitt, supra, at 1054). In addition, any estoppel argument is without basis because the Comptroller may not be compelled to grant benefits not authorized by law (see, Matter of Brosnahan v New York State Empls. Retirement Sys., 174 A.D.2d 954, 955, lv denied 78 N.Y.2d 858; Matter of Goodman v Regan, 151 A.D.2d 958, 960).
The question of whether there was an error in the initial determination and whether it should have been rescinded, as well as the question of whether the second determination denying benefits was proper, must await an administrative hearing (see, e.g., Matter of Brosnahan v New York State Empls. Retirement Sys., supra; Matter of Cassidy v Regan, 160 A.D.2d 1210; see also, Matter of Fahey v Axelrod, 152 A.D.2d 867). This proceeding was therefore premature and must await a final determination, at which point judicial review pursuant to CPLR article 78 will be limited to whether the administrative determination was supported by substantial evidence (see, e.g., Matter of Ginocchio v New York State Empls. Retirement Sys., 136 A.D.2d 789) and whether the Comptroller's construction of the terms of the statute was reasonable under the circumstances of this case (see, Matter of Cassidy v Regan, supra, at 1211). The parties' remaining contentions have been reviewed and found unpersuasive.
Weiss, P.J., Levine, Crew III, Mahoney and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.