                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521949
________________________________

In the Matter of JOAN PORCO,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE TEACHERS'
   RETIREMENT SYSTEM,
                    Respondent.
________________________________


Calendar Date:   April 29, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Lynch and Aarons, JJ.

                             __________


     Joan Porco, Voorheesville, appellant pro se.

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

                             __________


McCarthy, J.P.

      Appeal from a judgment of the Supreme Court (Platkin, J.),
entered February 3, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying
petitioner pension credit for certain months of service.

      In 1974, petitioner commenced employment as a public school
teacher and also became a tier 2 member of respondent. In 2004,
petitioner sustained a serious injury and then applied for and
was granted disability retirement under Education Law § 511. At
issue here is a three-month period thereafter in which petitioner
returned to work while still receiving disability retirement
benefits. In response to petitioner's request for clarification
regarding those three months, respondent informed petitioner that
                              -2-                521949

she would not receive service credit for that period, during
which she had received $6,809.91 in disability retirement as well
as her salary. Eventually, respondent issued a final
determination denying petitioner service credit for the disputed
three-month period. Thereafter, petitioner commenced this CPLR
article 78 proceeding challenging that determination. Supreme
Court upheld the determination and dismissed the petition, and
petitioner now appeals.

      We affirm. Because respondent's determination was rendered
without a hearing, this Court's review "is limited to whether
[the determination] is arbitrary, capricious or without a
rational basis" (Matter of Maillard v New York State Teachers'
Retirement Sys., 57 AD3d 1299, 1300 [2008], lv denied 12 NY3d 705
[2009]; see Matter of Evans v New York State Teachers' Retirement
Sys., 98 AD3d 1221, 1222 [2012]). Furthermore, given that
respondent is charged with administering the retirement statutes
at issue, its interpretations are entitled to deference and
should be upheld unless they are irrational, unreasonable or
inconsistent with the governing law (see Matter of Sush v New
York State Teachers' Retirement Sys., 2 AD3d 1127, 1128-1129
[2003]; Matter of Miller v New York State Teachers' Retirement
Sys., 157 AD2d 890, 891 [1990]).

      As a general rule, "retirement on a pension" causes a
person's membership in the retirement system to cease (Education
Law § 503 [3]). Education Law § 511 (5) permits tier 2
disability retirees to resume active service while still
receiving disability retirement benefits. Generally, the
disability beneficiary may earn an amount, which, together with
the disability pension, equals the amount of the beneficiary's
final average salary (see Education Law § 511 [5]). In such a
situation, the beneficiary "shall not become a member of
[respondent]" (Education Law § 511 [5]). Should the beneficiary
be restored to active service at a salary as great as his or her
final average salary, "his [or her] retirement allowance shall
cease, and he [or she] shall again become a member of
[respondent]," in which case the member's "prior service
certificate on the basis of which his [or her] service was
computed at the time of his [or her] retirement shall be renewed"
(Education Law § 511 [6]; see 83A NY Jur 2d Pensions and
                                -3-                521949

Retirement Systems § 252). Upon subsequent retirement, the
member "shall be credited" with both the service credit reflected
in the prior service certificate and "all [of] his [or her]
service as a member subsequent to the period covered by his [or
her] prior service certificate" (Education Law § 511 [6]).

      Here, respondent's interpretation of these statutes, which
relies on their plain-language meaning, is rational and
reasonable (see Matter of Sush v New York State Teachers'
Retirement Sys., 2 AD3d at 1129). Consistent with that
interpretation, petitioner's membership ended when she began
receiving disability retirement benefits (see Education Law § 503
[3]).1 Moreover, the plain language of Education Law § 511 (6)
only entitles petitioner to credits for "service as a member" of
respondent; although petitioner had returned to work during the
disputed three months, because her salary did not exceed the
statutory cap, Education Law § 511 (5) explicitly barred her from
becoming a member of respondent during that time. Thus,
respondent's determination to deny credits to petitioner during
the subject period will not be disturbed (cf. Matter of Regan v
DiNapoli, 135 AD3d 1225, 1226-1228 [2016]; Matter of Westmorland
v New York State & Local Retirement Sys., 129 AD3d 1402, 1404
[2015]). Petitioner's remaining claims have been considered and
are also without merit.

        Egan Jr., Rose, Lynch and Aarons, JJ., concur.




    1
        Contrary to petitioner's contention, she did not fall
into the exception to membership cessation embodied in Education
Law § 503 (3) for someone who has not withdrawn contributions and
"is eligible to receive a retirement allowance from the system
for other than disability." Petitioner did not satisfy the
aforementioned requirements because she was no longer eligible
for any other retirement allowance once she opted to receive
disability retirement benefits (see generally Education Law § 511
[8] [d]).
                        -4-                  521949

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
