                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 12, 2015                    519303
________________________________

In the Matter of JOHN W.
   BRANDT,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

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


Calendar Date:   January 6, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Harris & Panels, Syracuse (Michael J. Hutter of Powers &
Santola, LLP, Albany, of counsel), for appellant.

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

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Mercure, J.),
entered July 16, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Comptroller
denying petitioner's application for incentive service
retirement.

      On November 18, 2010, petitioner applied for a retirement
incentive offered temporarily to certain public employees (L
2010, ch 105). Respondent New York State and Local Employees'
Retirement System denied the application as untimely because
petitioner's retirement would not become effective until after
                              -2-                519303

the open period for the incentive had passed. Following a
hearing, the Hearing Officer upheld the denial of the application
and respondent Comptroller adopted that determination.
Petitioner thereafter commenced this CPLR article 78 proceeding
challenging the Comptroller's determination. Supreme Court
upheld the Comptroller's determination and dismissed the
petition. Petitioner now appeals.

      We affirm. "The Comptroller 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 and citation omitted];
see Matter of Schwartz v McCall, 300 AD2d 887, 888 [2002]).
Here, petitioner does not dispute the underlying factual
findings; rather, he challenges the Comptroller's interpretation
of chapter 105 of the Laws of 2010. As relevant here, the
statute provides that, "[f]or the purposes of retirement pursuant
to this act, a service retirement application must be filed with
the appropriate retirement system not less than [14] days prior
to the effective date of retirement to become effective" (L 2010,
ch 105, Part A, § 1 [j]). Moreover, the statute further reads
that any eligible employee who "files an application for service
retirement . . . that is effective during the open period[] and
. . . is otherwise eligible for a service retirement as of the
effective date of the application for retirement shall be
entitled to the retirement incentive" (L 2010, ch 105, part A,
§ 5 [b], [c] [emphasis added]).

      Petitioner was employed as a law clerk to a Supreme Court
justice, and the Office of Court Administration adopted an open
period for applications for the incentive from August 27, 2010 to
November 24, 2010. In finding that petitioner's November 18,
2010 application was untimely, the Comptroller interpreted the
phrase "that is effective during the open period" to refer to an
applicant's retirement. Accordingly, inasmuch as an application
for the incentive must be filed not less than 14 days prior to an
applicant's retirement date, the Comptroller determined that an
application had to have been filed by November 11, 2010 for a
                              -3-                  519303

retirement to be effective during the open period. Although
petitioner argues that the phrase refers to the application and
not the retirement date, we find no error in Supreme Court's
analysis, which deferred to the Comptroller's interpretation on
the ground that it was based upon "his specialized knowledge and
utilization of underlying operational practices" (Matter of
McMorrow v Hevesi, 6 AD3d 925, 927 [2004]). As we cannot
conclude that the Comptroller's interpretation was "irrational,
unreasonable or inconsistent with the governing statute," it will
not be disturbed (Matter of Whitehill v New York State Teachers'
Retirement Sys., 142 AD2d 902, 904 [1988], affd 73 NY2d 944
[1989]; see Matter of Lewandowski v New York State & Local Police
& Fire Retirement Sys., 69 AD3d 1027, 1029 [2010]; Matter of
McMorrow v Hevesi, 6 AD3d at 927).

     Garry, J.P., Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
