Opinion
March 18, 1976
Appeal from a judgment of the Supreme Court at Special Term, entered September 12, 1975 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to enjoin respondent from administering certain sections of the Retirement and Social Security Law and to declare said sections unconstitutional. In September, 1974, appellants, Korean War veterans, applied for benefits under section 302 and subdivision k of section 341 Retire. Soc. Sec. of the Retirement and Social Security Law. Their request was denied on the ground that subdivision k of section 341 applies only to World War II veterans. After a hearing for a redetermination, the Comptroller agreed and added the additional ground that subdivision k expired on March 31, 1972. The Retirement and Social Security Law provides for certain benefits for most veterans of all wars after World War I. (Retirement and Social Security Law, § 341, subd g.) Subdivision k of section 341, however, confers special benefits on veterans of World War II only. The sole question for our determination is whether this statute is unconstitutional because it provides additional service credit for veterans of World War II, but not for Korean War veterans. Special Term answered this question in the negative. Petitioners have the burden of establishing unconstitutionality beyond a reasonable doubt. (Nettleton Co. v Diamond, 27 N.Y.2d 182, 193.) This necessitates overcoming the dual presumptions of constitutionality and that the Legislature investigated for and found facts necessary to support the legislation. (Matter of Cohen v Levitt, 39 A.D.2d 141, 143.) It is well established that where the State extends a benefit it must provide it to all persons in a manner which does not violate the Equal Protection Clause (Rinaldi v Yeager, 384 U.S. 305, 310-311.) From an analysis of the record we are unable to say that the Legislature improperly concluded that World War II veterans should be accorded additional benefits. (See Matter of Gianatasio v Kaplan, 142 Misc. 611, affd 257 N.Y. 531, app dsmd 284 U.S. 595.) Consequently, petitioners have failed to overcome the presumption of constitutionality. (Cf. Montgomery v Daniels, 38 N.Y.2d 41.) The judgment should be affirmed. Judgment affirmed, without costs. Greenblott, J.P., Sweeney, Kane, Main and Reynolds, JJ., concur.