                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    519560
________________________________

In the Matter of EDWIN C.
   PEARSON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   February 17, 2015

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

                             __________


      Edwin C. Pearson, Ridgefield, Connecticut, petitioner
pro se.

      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 respondent which denied petitioner's
application for additional service credit in the calculation of
his retirement benefits.

      In 2004, petitioner was informed by representatives of the
New York State and Local Retirement System that he was eligible
to receive a retirement service credit for his employment with
the Legal Aid Society of Westchester County from 1973 to 1975.
In January 2011, he applied for retirement and it was thereafter
determined that the Legal Aid Society was not a participating
                              -2-                519560

employer in the Retirement System and, therefore, petitioner was
not entitled to a retirement service credit for that employment.
Petitioner requested a hearing and redetermination. Following
the hearing, at which various Retirement System employees
testified that the Legal Aid Society was not a participating
employer, the Hearing Officer denied petitioner's application for
the retirement service credit. Respondent adopted that
determination, with supplemental conclusions of law, prompting
this CPLR article 78 proceeding.

      We confirm. It is well settled that a "petitioner has the
burden of proof to establish his [or her] entitlement to
retirement service credit and that respondent's determination in
this regard must be upheld if supported by substantial evidence"
(Matter of McMorrow v Hevesi, 6 AD3d 925, 926 [2004]; see Matter
of DeLuca v New York State & Local Employees' Retirement Sys., 48
AD3d 876, 877 [2008]). Here, petitioner testified that he had no
evidence that the Legal Aid Society was ever a participating
employer in the Retirement System. Accordingly, inasmuch as the
record reflects that petitioner was not employed by a
participating employer during the time in question, respondent's
denial of the retirement service credit is supported by
substantial evidence (see Matter of Muccia v DiNapoli, 69 AD3d
1291, 1292 [2010]). Further, contrary to petitioner's
contention, respondent was not estopped from denying the
retirement service credit, despite the earlier misinformation
provided petitioner by employees of the Retirement System (see
Matter of Price v New York State & Local Employees' Retirement
Sys., 107 AD3d 1212, 1215-1216 [2013]; Matter of Champagne v
Regan, 191 AD2d 895, 895 [1993]; Matter of Limongelli v New York
State Employees' Retirement Sys., 173 AD2d 904, 905 [1991]).
Petitioner's remaining contentions, including his claim of
hearing officer bias, have been considered and found to be
without merit.

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.
                              -3-                  519560

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
