        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

679
CA 12-00806
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


DEIRDRE LOY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LOUIS L. LOY, DEFENDANT-APPELLANT.


CHAMBERLAIN, D’AMANDA, OPPENHEIMER & GREENFIELD, LLP, ROCHESTER (JOHN
A. SCHUPPENHAUER OF COUNSEL), FOR DEFENDANT-APPELLANT.

ZIMMERMAN & TYO, ATTORNEYS, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Ontario County
(William F. Kocher, A.J.), entered January 25, 2012. The order, among
other things, distributed defendant’s pension benefits.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this postjudgment matrimonial proceeding,
defendant appeals from a qualified domestic relations order (QDRO)
that directed the New York State and Local Retirement System
(retirement system) to pay his ex-wife her marital share of
defendant’s pension pursuant to the Majauskas formula (see Majauskas v
Majauskas, 61 NY2d 481, 489-491). Although no appeal lies as of right
from a QDRO (see Andress v Andress, 97 AD3d 1151, 1152; Cuda v Cuda
[appeal No. 2], 19 AD3d 1114, 1114), we nevertheless treat the notice
of appeal as an application for leave to appeal and grant the
application (see Cuda, 19 AD3d at 1114).

     With respect to the merits, defendant contends that Supreme Court
should have ordered the retirement system to calculate his “retirement
allowance” as being the “hypothetical” benefit he would have received
based on his years of service as of the date on which the divorce
action was commenced, rather than as being the actual benefit he later
received upon retirement. According to defendant, the QDRO entered by
the court improperly awards plaintiff a portion of his separate
property, i.e., the increases in his “retirement allowance”
attributable to step increases and promotional increases in his pay
that occurred after the date of commencement of the divorce action.
We reject that contention. As the Court of Appeals stated in
Majauskas, where the pension participant made a similar argument, the
fact that a participant’s three highest years of earnings may occur
after divorce does affect the alternate payee’s marital share of the
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                                                         CA 12-00806

pension benefits, “for as the Delaware Supreme Court held in Jerry
L.C. v Lucille H.C. [448 A2d 223, 226], ‘[s]ince each employment year
is counted for pension purposes each contributes to the high salary
years’ ” (id. at 492). The cases relied upon by defendant are
distinguishable because they involve defined contribution retirement
plans (see Wegman v Wegman, 123 AD2d 220; Kammerer v Kammerer, 2001 NY
Slip Op 40218[U]), whereas here defendant has a defined benefit plan.

     Defendant further contends, seemingly in the alternative, that
the QDRO is inconsistent with the parties’ stipulation, which he
interprets as giving plaintiff a share of his pension as if he retired
on the date of commencement of the divorce action. That contention is
raised for the first time on appeal and thus is not properly before us
(see Ciesinski v Town of Aurora, 202 AD2d 984, 985). In any event,
defendant’s contention lacks merit. The stipulation makes no
reference to a hypothetical retirement date; instead, it simply
provides that plaintiff’s share of the pension will be determined
pursuant to the Majauskas formula, and that is what the QDRO
accomplishes.




Entered:   July 19, 2013                       Frances E. Cafarell
                                               Clerk of the Court
