                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 17, 2015                   520818
________________________________

In the Matter of PETER GILLES,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   October 20, 2015

Before:   Peters, P.J., Lahtinen, Garry and Clark, JJ.

                             __________


     Thomas J. Troetti, White Plains, for petitioner.

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

                             __________


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

      Petitioner, a member of the Town of Greenburgh Police
Department, received overtime pay for occasionally volunteering
to work special-duty details, which involved police services
provided to private entities that paid the Town for such
services. After his retirement, the New York State and Local
Retirement System notified petitioner that pay for such special-
duty details would not be included in his final average salary,
and a Hearing Officer came to the same conclusion following a
                              -2-                  520818

hearing. Respondent Comptroller ultimately upheld that
determination stating, in part, that petitioner had "failed to
sustain his burden of proving that he [was] eligible to have
included in the calculation of his final average salary those
payments received for services rendered to private entities and
for which the employer [was] reimbursed by the private entities."
Petitioner commenced this CPLR article 78 proceeding challenging
the Comptroller's determination. The relevant issues are the
same as in our recently decided case of Matter of Tamucci v
DiNapoli (133 AD3d 960 [2015]), and, for the reasons set forth
therein, we confirm.

     Peters, P.J., Garry and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
