                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   519602
________________________________

In the Matter of THEODORE J.
   PITZEL,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   September 17, 2015

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

                             __________


      Bartlett, McDonough & Monaghan, LLP, White Plains (Warren
J. Roth of counsel), for petitioner.

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

                             __________


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

      Between 1989 and 2012, petitioner was employed as a police
officer by the City of New Rochelle Police Department
(hereinafter the police department). In 2004, the City entered
into an agreement with the Police Association of the City of New
Rochelle – of which petitioner was an active member – which
provided that all members of the Police Association "shall be
eligible to work . . . [s]pecial-[d]uty [d]etails" which would be
                              -2-                 519602

paid "at the member's overtime rate of time and one half." The
agreement defined special-duty details as "voluntary paid police
details where members work at certain locations and occasions in
[the City] when a merchant/vendor contracts with and pays the
City for such special police services." After petitioner's
retirement, the New York State and Local Retirement System
informed him that the calculation of his final average salary
would not include consideration of salary earned for special-duty
details. Following a hearing, a Hearing Officer concluded that
the wages that petitioner earned for services performed on
special-duty details were properly excluded from the calculation
of his final average salary. Respondent adopted the decision of
the Hearing Officer and denied petitioner's application for
recalculation of his final average salary. Petitioner then
commenced this CPLR article 78 proceeding to challenge
respondent's determination. Supreme Court, finding that the
petition raised an issue of substantial evidence, transferred the
proceeding to this Court.

      The uncontested evidence is substantially similar to that
presented in Matter of Tamucci v DiNapoli (___ AD3d ___ [decided
herewith]). Private entities paid the police department so that
police officers, like petitioner, would provide services to them.
Further, petitioner acknowledged that he volunteered to perform
services on special-duty details, and the record is devoid of
evidence establishing that the police department had ever, in
fact, ordered petitioner or his fellow officers to perform
special-duty details. For the reasons discussed in Matter of
Tamucci v DiNapoli (supra), substantial evidence supports
respondent's determination that petitioner did not provide
services to the police department while he was on special-duty
details. Petitioner's remaining contentions are without merit.

     Peters, P.J., Garry and Rose, JJ., concur.
                              -3-                  519602

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
