                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    519268
________________________________

In the Matter of JOHN SANDERS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
NEW YORK STATE AND LOCAL
   EMPLOYEES' RETIREMENT
   SYSTEM,
                    Respondent.
________________________________


Calendar Date:   February 9, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ.

                             __________


      Creighton Johnsen & Giroux, Buffalo (Jonathan Johnsen of
counsel), for petitioner.

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

                             __________


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
                              -2-                519268

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 AD3d
1205, 1206 [2013]; see Matter of Goldberg v DiNapoli, 87 AD3d
1240, 1240 [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 AD3d at 1240-1241).

      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
                              -3-                  519268

give rise to an estoppel here" (Matter of Lewandowski v New York
State & Local Police & Fire Retirement Sys., 69 AD3d 1027, 1029
[2010]; see Matter of Goldberg v DiNapoli, 87 AD3d at 1241;
Matter of Schwartz v McCall, 300 AD2d 887, 889 [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 AD3d
1250, 1250 [2014]; Matter of Goldstein v Tax Appeals Trib. of the
State of N.Y., 111 AD3d 986, 987 [2013], appeal dismissed 23 NY3d
985 [2014], lv denied 24 NY3d 904 [2014]).

     Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
