                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      520335
________________________________

In the Matter of MARTIN J.
   SAWMA,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

THOMAS P. DiNAPOLI, as State
   Comptroller,
                    Respondent.
________________________________


Calendar Date:   April 18, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

                             __________


     Martin J. Sawma, Buffalo, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the Supreme Court (Elliott III,
J.), entered June 20, 2014 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying,
among other things, petitioner's application for service
retirement benefits.

      In July 2010, petitioner's employment with the Erie County
Board of Elections was terminated. At the time of the
termination, petitioner had 3.45 years of service credit as a
member of the New York State and Local Employees' Retirement
System, which is less than the five or more years of credited
service required upon termination of employment to be considered
                              -2-                520335

vested and eligible for service retirement benefits (see
Retirement and Social Security Law § 612 [a]). In September
2010, petitioner sought to purchase 4.7 years of service credit
for the period of time from May 2001 to March 2007 when he was
employed as a substitute teacher with the Buffalo Board of
Education, prior to becoming a member of the Retirement System
(see Retirement and Social Security Law § 609). The Retirement
System informed petitioner that he could purchase the requested
service credit, but since he had left the payroll prior to
obtaining the credit, it could not be applied toward a retirement
benefit. The Retirement System further informed petitioner that,
upon a return to employment with a participating employer, the
purchased credit could then be applied towards vested retirement
benefits.

      In May 2012, after he had submitted payment for the
additional 4.7 years of service credit but had not returned to
employment with a participating employer, petitioner applied for
service retirement benefits, seeking an August 2010 date of
retirement. In light of petitioner's failure to secure
employment with a participating employer, as well as petitioner's
request for a retroactive retirement date, the Retirement System
denied both his request to be credited with the additional 4.7
years and his application for retirement benefits. Following a
hearing, the Hearing Officer upheld the denials. Respondent
adopted that determination and this CPLR article 78 proceeding
ensued. Supreme Court upheld respondent's determination and
dismissed the petition. Petitioner now appeals.

      We affirm. "[Respondent] has exclusive authority to
determine all applications for retirement benefits and the
determination must be upheld if the interpretation of the
controlling retirement statute is reasonable and the underlying
factual findings are supported by substantial evidence" (Matter
of O'Brien v DiNapoli, 116 AD3d 1124, 1125 [2014], lv granted 23
NY3d 908 [2014] [internal quotation marks, brackets and citations
omitted]; accord Matter of Brandt v DiNapoli, 126 AD3d 1165, 1166
[2015], lv denied 26 NY3d 904 [2015]). To be eligible for
service retirement benefits, a member of the retirement system
must have "five or more years of credited service . . . upon
termination of employment" (Retirement and Social Security Law
                              -3-                  520335

§ 612 [a] [emphasis added]). Here, it is undisputed that
petitioner only had 3.45 years of credited service in the
Retirement System at the time his employment terminated.
Petitioner is entitled to be credited for the service he provided
to a participating employer prior to his enrollment in the
Retirement System. However, as service retirement eligibility is
determined upon termination of employment, respondent's
requirement that such credited service must be established prior
to termination is not unreasonable. Contrary to petitioner's
contention, the fact that at the time of his termination he was
an at-will employee – and his employment could seemingly have
been terminated at any time by either party – does not render
respondent's requirement "irrational, unreasonable or
inconsistent with the governing statute" (Matter of Whitehill v
New York State Teachers' Retirement Sys., 142 AD2d 902, 904
[1988], affd 73 NY2d 944 [1989]; accord Matter of Brandt v
DiNapoli, 126 AD3d at 1167).

       Finally, a member filing an application for service
retirement must "specify the effective date of his or her
retirement, which shall be not less than [15] nor more than [90]
days subsequent to such date of filing" (Retirement and Social
Security Law § 70). Thus, respondent also properly denied
petitioner's 2012 application seeking to set a retroactive date
of August 1, 2010 as the date of his retirement. Petitioner's
remaining claims, including that he was deprived of due process
during the hearing, have been considered and found to be without
merit.

     Lahtinen, J.P., McCarthy, Rose and Aarons, JJ., concur.


     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
