                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   520384
________________________________

In the Matter of MARK TAMUCCI,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller, et al.,
                    Respondents.
________________________________


Calendar Date:   September 17, 2015

Before:   Peters, P.J., McCarthy, Garry and Rose, JJ.

                             __________


      The Quinn Law Firm, PLLC, White Plains (Anthony J. DiFiore
of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondents.

                             __________


McCarthy, 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 Comptroller denying
petitioner's application for recalculation of his final average
salary.

      Between 1989 and 2009, petitioner was employed as a police
sergeant with the Town and Village of Harrison Police Department
(hereinafter the police department) and was a member of
respondent New York State Police and Fire Retirement System and
the Town of Harrison Police Association. During his last three
years of employment, petitioner received special-duty overtime
wages for services performed on special details. Special details
                              -2-                520384

result from private entities contracting with the police
department for its officers to provide various services that
would not otherwise be afforded to such entities. After
petitioner's retirement, the New York State and Local Retirement
System sent petitioner a letter indicating this his final average
salary was based on calculations that did not include salary
resulting from special-duty overtime wages.

      Petitioner thereafter sought a recalculation of his final
average salary that included such overtime wages. Eventually,
after a hearing, a Hearing Officer concluded that the wages that
petitioner earned for services performed on special details were
properly excluded from the calculation of his final average
salary. Respondent Comptroller adopted the decision of the
Hearing Officer and denied petitioner's application for a
recalculation of his final average salary. Petitioner then
commenced this CPLR article 78 proceeding. Supreme Court,
finding that the petition raised an issue of substantial
evidence, transferred the proceeding to this Court.

      The Comptroller is vested with the "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 Earle v Office of the N.Y. State Comptroller, 128 AD3d 1317,
1317 [2015] [internal quotation marks and citations omitted];
accord Matter of Brandt v DiNapoli, 126 AD3d 1165, 1166 [2015],
lv denied 26 NY3d 904 [2015]; see Retirement and Social Security
Law § 374 [b]). Substantial evidence is "such relevant proof as
a reasonable mind may accept as adequate to support a conclusion
or ultimate fact" (Matter of Berenhaus v Ward, 70 NY2d 436, 443
[1987] [internal quotation marks and citations omitted]; accord
Matter of Dewitt v New York State Bd. of Law Examiners, 90 AD3d
1457, 1457 [2011], lv denied 18 NY3d 810 [2012]). As is relevant
here, "final average salary" is defined as "[t]he average annual
compensation of a member for credited government service not
exceeding his [or her] three years of credited government service
immediately preceding his [or her] date of retirement"
(Retirement and Social Security Law § 302 [9] [a]). "Government
service" includes, among other things, paid "[s]ervice as an
                               -3-                520384

officer or employee of an employer" (Retirement and Social
Security Law § 302 [12] [a]). "Employer," in turn, is defined as
"[t]he state, a participating employer, and any other unit of
government or organization obligated or agreeing . . . to make
contributions to the retirement system on behalf of its police
[officers] and fire [fighters]" (Retirement and Social Security
Law § 302 [8]). Finally, "participating employer" includes "any
municipality participating in the [police and fire] retirement
system" (Retirement and Social Security Law § 302 [20]).

      The Comptroller's finding that petitioner's services during
special details were provided to the relevant private entities,
rather than the police department, is supported by substantial
evidence. The uncontested record evidence established that
private entities paid the police department in order to receive
services, performed by petitioner and other officers, in the form
of special details. A reasonable person could infer that the
police department required these private entities to pay for the
services because it had determined that such services were not
within the scope of its responsibilities to the public.1

      To the extent that we have previously indicated that the
voluntariness of such services is relevant to the inquiry (see
Matter of Cannavo v Regan, 122 AD2d 523, 524-525 [1986], lv
denied 68 NY2d 612 [1986]), petitioner unambiguously testified
that he had volunteered for all of the special details on which
he had performed services. Further, there is no indication in
the record that the police department had ever ordered or
otherwise compelled petitioner or any of his fellow officers to
perform services on special details. Considering the evidence
that private entities contracted to have these services provided
to them, and further acknowledging the lack of evidence that
special details were, in fact, required by the police department,
substantial evidence supports the Comptroller's determination
that the services that petitioner performed on special details
were not provided to the police department (see Matter of Cannavo
v Regan, 122 AD2d at 524-525). Petitioner's remaining


     1
        Whether that determination is correct is not an issue
before this Court.
                                 -4-               520384

contentions are without merit.

     Peters, P.J., Garry and Rose, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
