Opinion
519560
03-26-2015
In the Matter of Edwin C. PEARSON, Petitioner, v. Thomas P. DiNAPOLI, as State Comptroller, Respondent.
Edwin C. Pearson, Ridgefield, Connecticut, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Edwin C. Pearson, Ridgefield, Connecticut, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.
Opinion
CLARK, J.Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner's application for additional service credit in the calculation of his retirement benefits.
In 2004, petitioner was informed by representatives of the New York State and Local Retirement System that he was eligible to receive a retirement service credit for his employment with the Legal Aid Society of Westchester County from 1973 to 1975. In January 2011, he applied for retirement and it was thereafter determined that the Legal Aid Society was not a participating employer in the Retirement System and, therefore, petitioner was not entitled to a retirement service credit for that employment. Petitioner requested a hearing and redetermination. Following the hearing, at which various Retirement System employees testified that the Legal Aid Society was not a participating employer, the Hearing Officer denied petitioner's application for the retirement service credit. Respondent adopted that determination, with supplemental conclusions of law, prompting this CPLR article 78 proceeding.
We confirm. It is well settled that a “petitioner has the burden of proof to establish his [or her] entitlement to retirement service credit and that respondent's determination in this regard must be upheld if supported by substantial evidence” (Matter of McMorrow v. Hevesi, 6 A.D.3d 925, 926, 774 N.Y.S.2d 452 [2004] ; see Matter of DeLuca v. New York State & Local Employees' Retirement Sys., 48 A.D.3d 876, 877, 850 N.Y.S.2d 715 [2008] ). Here, petitioner testified that he had no evidence that the Legal Aid Society was ever a participating employer in the Retirement System. Accordingly, inasmuch as the record reflects that petitioner was not employed by a participating employer during the time in question, respondent's denial of the retirement service credit is supported by substantial evidence (see Matter of Muccia v. DiNapoli, 69 A.D.3d 1291, 1292, 893 N.Y.S.2d 386 [2010] ). Further, contrary to petitioner's contention, respondent was not estopped from denying the retirement service credit, despite the earlier misinformation provided petitioner by employees of the Retirement System (see Matter of Price v. New York State & Local
Employees' Retirement Sys., 107 A.D.3d 1212, 1215–1216, 967 N.Y.S.2d 482 [2013] ; Matter of Champagne v. Regan, 191 A.D.2d 895, 895, 595 N.Y.S.2d 120 [1993] ; Matter of Limongelli v. New York State Employees' Retirement Sys., 173 A.D.2d 904, 905, 569 N.Y.S.2d 768 [1991] ). Petitioner's remaining contentions, including his claim of hearing officer bias, have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., EGAN JR. and DEVINE, JJ., concur.