                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 21, 2016                    520960
________________________________

In the Matter of C. MURRAY
   REGAN,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

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


Calendar Date:    November 17, 2015

Before:    Lahtinen, J.P., Garry, Rose, Lynch and Devine, JJ.

                              __________


      Law Office of Christen Archer Pierrot, East Aurora
(Christen Archer Pierrot of counsel), for appellant.

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

                              __________


Rose, J.

      Appeal from an order and judgment of the Supreme Court
(O'Connor, J.), entered July 1, 2014 in Albany County, which
dismissed petitioner's application, in a proceeding pursuant to
CPLR article 78, to review a determination of respondent denying
petitioner credit for certain years of service.

      Petitioner worked as a teacher and, in that capacity, he
was a member of the New York State Teachers' Retirement System
(hereinafter TRS) for over 30 years when, in January 1998, he
also began to serve as an elected town supervisor. In this
latter capacity, he was also a member of the New York State and
Local Retirement System (hereinafter LRS). After being advised
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by a representative of the LRS that he could retire from teaching
and continue to accrue service credit in the LRS "[a]s long as
[he] continue[d] as an elected official," petitioner retired from
teaching in July 1998 and began collecting his pension from the
TRS while continuing to earn a town supervisor's salary. In
2001, petitioner lost his bid for reelection as town supervisor
and applied to the LRS for retirement benefits. The LRS rejected
his application, finding that he had not yet accrued the required
minimum amount of service credit. In 2004, petitioner regained
elective office, this time as a village justice. He served for
eight years in this new position, all the while receiving both
his TRS pension and a village justice's salary. During this time
period, the LRS sent him annual updates indicating, among other
things, that he was also accruing service credit.

      When petitioner decided not to seek reelection for his
position as a village justice for the term starting in 2012, he
again applied to the LRS for retirement benefits and, again, the
LRS rejected his application. The LRS explained to petitioner
that he remained ineligible for retirement benefits and its prior
advice and updates had been erroneous because, upon acceptance of
his position as an elected village justice in 2004, he had not
suspended receipt of his TRS pension benefits and, therefore, he
did not resume accruing service credit in the LRS. After
exhausting his administrative remedies in an unsuccessful attempt
to overturn the denial of his application for additional LRS
service credit, petitioner commenced this CPLR article 78
proceeding. Supreme Court dismissed the petition, prompting this
appeal.

      Petitioner argues that Civil Service Law § 150 permits him
to receive both his TRS pension benefits and his salary as an
elected official while simultaneously accruing service credit
toward an LRS pension. However, based upon our review of the
language of the statute and the legislative intent behind it (see
Matter of Grella v Hevesi, 38 AD3d 113, 116 [2007]), we cannot
agree. As relevant here, Civil Service Law § 150 generally
prohibits receipt of both a public pension and a salary as a
public official or employee, but also provides an exception for
public pensioners who become elected officials – such as
petitioner. It states that "if any person subsequent to his or
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her retirement from [public employment] . . . shall accept any
. . . [public] employment . . ., except . . . an elective public
office, any [public] pension or annuity awarded or allotted to
him or her upon retirement . . . shall be suspended during such
service or employment and while such person is receiving any
salary or emolument therefor" (Civil Service Law § 150 [emphasis
added]).

      While we agree that this exception allowed petitioner to
receive a salary as an elected official without suspending his
TRS pension benefits, we note that Civil Service Law § 150 makes
no express mention of service credit and, instead, refers only to
pension benefits that have already been "awarded or allotted."
The statute makes no reference whatsoever to the accrual of any
future benefits. Similarly, the legislative history indicates
that the original purpose behind the exception for public
pensioners who subsequently become elected officials was to
encourage continued civic engagement by "allow[ing] a retired
public employee to seek elected public office and continue to
receive his/her public pension benefits" (Assembly Sponsor's Mem
in Support, Bill Jacket, L 1995, ch 211 at 7 [emphasis added]).
Thus, in our view, the statute allows public pensioners to
continue receiving the benefits they have already earned while
also serving in paid elective office, but it does not provide for
the accrual of additional credit for new or greater pension
benefits.

      Further, petitioner's argument regarding the meaning of
Civil Service Law § 150 ignores Retirement and Social Security
Law § 40 (c) (9), which provides that a retired public employee
entitled to public pension benefits who subsequently accepts a
new public service position is considered to be an active member
of the retirement system only if the pension benefits to which he
or she is entitled are suspended during his or her active
membership. Respondent based his denial of petitioner's
application for additional service credit, in part, upon his
reasonable interpretation of this provision to mean that, because
petitioner did not suspend his TRS pension benefits during his
tenure as an elected village justice, he was not an active member
of the LRS during that time period and, accordingly, did not
accrue additional LRS service credit. Deferring to respondent's
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reasonable interpretation of this provision (see e.g. Matter of
Brandt v DiNapoli, 126 AD3d 1165, 1166-1167 [2015], lv denied 26
NY3d 904 [2015]), and based upon our own reading of Civil Service
Law § 150 (see e.g. Matter of Grella v Hevesi, 38 AD3d at 116),
we agree with Supreme Court's determination that respondent
correctly denied petitioner's request for additional service
credit.

      Petitioner alternatively argues that respondent should be
equitably estopped from denying him additional service credit
because his career decisions were based, in part, upon incomplete
advice and erroneous information provided by LRS employees
regarding his ability to earn such credit. However, the doctrine
of equitable estoppel generally cannot be invoked against a state
agency unless "'there has been a showing of fraud,
misrepresentation, deception, or similar affirmative misconduct,
along with reliance thereon'" (Matter of Atlantic States Legal
Found., Inc. v New York State Dept. of Envtl. Conservation, 119
AD3d 1172, 1173 [2014], quoting Stone Bridge Farms, Inc. v County
of Columbia, 88 AD3d 1209, 1212 [2011]). While the LRS readily
conceded that mistakes were made regarding the information
provided to respondent, we find no evidence in the record that
any of those mistakes rise above the level of "erroneous advice
[given] by a government employee[, which] does not constitute the
type of unusual circumstance contemplated by the exception"
(Matter of Grella v Hevesi, 38 AD3d at 117; see Matter of
Westmorland v New York State & Local Retirement Sys., 129 AD3d
1402, 1404-1405 [2015]; Matter of Atlantic States Legal Found.,
Inc. v New York State Dept. of Envtl. Conservation, 119 AD3d at
1173).

      Petitioner's further contention that respondent's denial of
his application for additional service credit violates NY
Constitution, article V, § 7 is raised for the first time on
appeal and, thus, is unpreserved for our review. Even if this
issue were preserved, we would find it to be academic because
petitioner had no right or entitlement to the additional service
credit he claims. We have examined petitioner's remaining
arguments and find them to be without merit.

     Lahtinen, J.P., Garry, Lynch and Devine, JJ., concur.
                              -5-                  520960

      ORDERED that the order and judgment is affirmed, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
