Opinion
April 14, 1989
Appeal from the Supreme Court, Erie County, Notaro, J.
Present — Dillon, P.J., Callahan, Green, Pine and Lawton, JJ.
Judgment unanimously affirmed with costs, in accordance with the following memorandum: We agree with the trial court's determination that the plan administrator acted arbitrarily and capriciously in denying plaintiff's rule-of-65 pension benefits claim because defendant failed to advise plaintiff of his rights and obligations under the pension plan. We note, however, that pursuant to the Supreme Court's recent holding in Firestone Tire Rubber Co. v. Bruch (489 US ___, 103 L Ed 2d 80), the trial court's determination should have been based on a de novo review. Under this standard, the result reached by the trial court is clearly warranted. Since plaintiff was the prevailing party, the award of attorney's fees was proper (see, 29 U.S.C. § 1132 [g]; Ford v. New York Cent. Teamsters Pension Fund, 506 F. Supp. 180, affd 642 F.2d 664).