The Court also notes that, under New York precedent, a beneficiary of a state retirement plan who is not also a member does not receive the constitutional protection of Article V, § 7. See Newman v. Levitt, 84 Misc.2d 903, 377 N.Y.S.2d 962, 964 (N.Y.Sup.Ct. 1976). The named plaintiffs do not allege that they are members of the Retirement System and therefore are not entitled to the contractual protection in any case.

The purpose of the amendment was to fix the rights of the employee at the time he became a member of the system. * * *" ( Birnbaum v. New York State Teachers Retirement System (1958), 5 N.Y.2d 1, 176 N.Y.S.2d 984, 152 N.E.2d 241, 245; accord, Newman v. Levitt (Sup. Ct. 1976), 84 Misc.2d 903, 377 N.Y.S.2d 962.) Thus, in Birnbaum the plaintiffs were existing members of the retirement system when the constitutional amendment took effect in 1940.

In the only reported case in which this issue has been decided, Special Term in Albany County (CASEY, J.), concluded: "[The member's] election of Option '3' is a knowing and voluntary one and with the purpose of protecting his wife financially during her lifetime, should she survive him. As beneficiary and as a nonmember of the system the wife is not entitled to the constitutional protection that the petitioner is, and her life expectancy tables may change" (Matter of Newman v Levitt, 84 Misc.2d 903, 905). This "knowing and voluntary" election of the member, as with the petitioner herein and in the Newman case, in selecting Option 3 rather than Option 0 is the crucial distinction from Birnbaum v New York State Teachers' Retirement System ( 5 N.Y.2d 1).