Opinion
519268
03-26-2015
In the Matter of John SANDERS, Petitioner, v. NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM, Respondent.
Creighton Johnsen & Giroux, Buffalo (Jonathan Johnsen of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Creighton Johnsen & Giroux, Buffalo (Jonathan Johnsen of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR. 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 the Comptroller which denied petitioner's request to withdraw his application for service retirement.
Petitioner began working as a police officer for the Buffalo Police Department in 1988. With an eye towards retirement, he met with a retirement information representative in April 2011 and filed an application for service retirement benefits effective June 30, 2011. He learned at the meeting, however, that a domestic relations order filed with respondent would result in his ex-wife receiving a portion of his monthly retirement benefit. Petitioner believed that the terms of the order were inaccurate and, as such, told the representative that he did not wish to retire until that problem could be resolved. It became apparent that his retirement application was still being processed and, on June 29, 2011, petitioner telephoned respondent and again stated that he did not wish to retire. Petitioner continued to work until July 27, 2011, when he was advised by his employer that he had retired. Petitioner's subsequent written request to withdraw his retirement application was denied as untimely. Following a hearing, a Hearing Officer agreed that petitioner was not entitled to withdraw his retirement application. The Comptroller adopted the findings and conclusions of the Hearing Officer, and this CPLR article 78 proceeding ensued.
We confirm. The Comptroller “is vested with the exclusive authority to resolve applications for retirement benefits,” and those determinations will be upheld if supported by substantial evidence in the record (Matter of Graziose v. DiNapoli, 110 A.D.3d 1205, 1206, 973 N.Y.S.2d 814 [2013] ; see Matter of Goldberg v. DiNapoli, 87 A.D.3d 1240, 1240, 930 N.Y.S.2d 89 [2011] ). Petitioner's application for service retirement could only be withdrawn “by filing a written request to withdraw ... prior to the effective date of retirement,” which he admittedly failed to do (2 NYCRR 341.5 ). Accordingly, the Comptroller's determination denying his untimely written request to withdraw was supported by substantial evidence (see Matter of Goldberg v. DiNapoli, 87 A.D.3d at 1240–1241, 930 N.Y.S.2d 89 ).
We reject petitioner's further argument that the Comptroller should be equitably estopped from denying his application to withdraw. Petitioner was advised that he must withdraw his retirement application before it became effective and, moreover, was aware that the application was being processed despite his initial effort to withdraw it. He nevertheless did nothing until the day before his retirement became effective, when he called “someone” at respondent and reiterated that he wanted to withdraw his retirement application. Petitioner claimed that the unnamed employee told him that an oral withdrawal would be sufficient, but “even if the advice given by respondent's administrative employees was erroneous, it would not give rise to an estoppel here” (Matter of Lewandowski v. New York State & Local Police & Fire Retirement Sys., 69 A.D.3d 1027, 1029, 893 N.Y.S.2d 325 [2010] ; see Matter of Goldberg v. DiNapoli, 87 A.D.3d at 1241, 930 N.Y.S.2d 89 ; Matter of Schwartz v. McCall, 300 A.D.2d 887, 889, 752 N.Y.S.2d 416 [2002] ).
As a final matter, petitioner's assertion that respondent erred in refusing to accept an amended domestic relations order for filing was not raised in his petition and is not properly before us (see Matter of White v. State of New York, 117 A.D.3d 1250, 1250, 984 N.Y.S.2d 889 [2014] ; Matter of Goldstein v. Tax Appeals Trib. of the State of N.Y., 111 A.D.3d 986, 987, 974 N.Y.S.2d 626 [2013], appeal dismissed 23 N.Y.3d 985, 990 N.Y.S.2d 463, 13 N.E.3d 1049 [2014], lv. denied 24 N.Y.3d 904, 2014 WL 4637182 [2014] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LAHTINEN, J.P., McCARTHY and EGAN JR., JJ., concur.