                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 7, 2016                     521161
________________________________

In the Matter of VICTOR H.
   BATORKSY,
                    Appellant,
      v

NEW YORK STATE OFFICE OF THE
   COMPTROLLER et al.,                      MEMORANDUM AND ORDER
                    Respondents.

ANGELA M. BATORKSY,
                      Respondent.

________________________________


Calendar Date:   February 18, 2016

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

                             __________


     Victor H. Batorsky, Rensselaer, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for New York State Office of the Comptrollers
and others, respondents.

      Young, Fenton, Kelsey & Brown, PC, Albany (Andrea L. Kelsey
of counsel), for Angela M. Batorsky, respondent.

                             __________


Garry, J.

      Appeal from an order and judgment of the Supreme Court
(O'Connor, J.), entered July 30, 2014 in Albany County, which
dismissed petitioner's application, in a combined proceeding
pursuant to CPLR article 78 and action for declaratory judgment,
to review a determination of the Deputy Comptroller denying
                              -2-                521161

petitioner's request to change his retirement election option.

      Petitioner, a retired state employee and member of
respondent New York State and Local Retirement System, was
formerly married to interested party Angela M. Batorsky, who is
also a retired state employee and Retirement System member.
Their 2002 judgment of divorce and incorporated stipulations of
settlement required petitioner to pay a share of his pension
benefits to Batorsky calculated according to the formula set
forth in Majauskas v Majauskas (61 NY2d 481 [1984]). In 2005,
Supreme Court (Ceresia Jr., J.) signed a domestic relations order
(hereinafter the 2005 order) that, as relevant here, directed
petitioner to select Batorsky as alternate payee upon his
retirement and to elect a specified retirement option by which,
following his death, she would receive a benefit calculated
according to the Majauskas formula.1 The Retirement System
subsequently calculated the survivorship benefits in accord with
this plan.

      Petitioner thereafter sought postjudgment relief relative
to the distribution of his pension benefits. While engaged in
these negotiations, petitioner also filed an application to
retire with an effective date of September 25, 2010. In response
to his notification regarding potential revisions, in August
2010, the Retirement System advised that it would implement the
2005 order unless it was served with an order terminating or
amending it before September 25, 2010. Thereafter, the
Retirement System advised petitioner of the requirements of the
2005 order and directed him to complete and sign a retirement
option election form. In the fall of 2010, following additional
communications with the parties and their counsel, the Retirement
System approved a proposed amended domestic relations order, and
extended the deadline for petitioner to submit his option form to




    1
        A corresponding order required Batorsky to make certain
retirement elections for petitioner's benefit; that order is not
at issue in this appeal.
                               -3-                521161

October 31, 2010.2 Late in October 2010, the Retirement System
advised petitioner that the deadline could not be further
extended, and that the Retirement System was legally bound to
implement the 2005 order until it was served with an order that
superseded or vacated it or restrained the Retirement System from
implementing it. No such order was served before October 31,
2010. The Retirement System advised petitioner in November 2010
that it would apply the terms of the 2005 order to his
retirement. In December 2010, petitioner requested a hearing to
dispute this determination.

      Also in December 2010, upon the consent of petitioner and
Batorsky, Supreme Court issued an amended domestic relations
order (hereinafter the 2010 order) that vacated and superseded
the 2005 order and, among other things, changed the calculation
of Batorsky's survivorship benefit. The Retirement System
refused to implement the 2010 order, stating that a retiree has
30 days after the first day of the month following the effective
date of his or her retirement to change an option election
pursuant to Retirement and Social Security Law §§ 90 and 100,
that the time to alter Batorksy's survivorship benefit had passed
as a matter of law, and that payments would continue to be made
pursuant to the 2005 order until the Retirement System received
an amended order "which satisfies the requirements of law."

      Supreme Court issued a new amended domestic relations order
upon consent in August 2011 (hereinafter the 2011 order). The
2011 order vacated the 2005 and 2010 orders and changed the
amount of the monthly retirement allowance payable to Batorsky
during petitioner's lifetime, but did not alter the amount of her
survivorship benefit from that specified in the 2005 order. The
Retirement System accepted and implemented the 2011 order.3


     2
        The Retirement System asserts that petitioner never
submitted a signed option election form. Although we note that
petitioner disagrees, the only copy of the form in the record is
unsigned and contains a note that petitioner refused to sign it.
     3
        The alteration in the percentage of petitioner's monthly
retirement allowance during his lifetime was acceptable to the
                              -4-                521161

      Thereafter, hearings were held upon petitioner's prior
request. Petitioner argued that the amount of Batorsky's
survivorship benefit under the 2011 order should be decreased
and, in the alternative, that the Retirement System erred in
refusing to accept the 2010 order. The Hearing Officer found
that petitioner could not change the percentage of the
survivorship benefit from that specified in the 2005 order
because the option election had become irrevocable on October 31,
2010 pursuant to Retirement and Social Security Law § 90 (e).
Thereafter, the Deputy Comptroller issued a final determination
denying petitioner's application. Petitioner, pro se, thereafter
commenced this combined CPLR article 78 proceeding and
declaratory judgment action seeking, among other things, vacatur
of the 2011 order and implementation of the 2010 order.
Respondents opposed and, in July 2014, Supreme Court (O'Connor,
J.) dismissed the petition/complaint, finding that the Deputy
Comptroller's determination was not arbitrary or capricious.
Petitioner appeals.

      Petitioner's several challenges to Supreme Court's
determination are fundamentally premised on the theory that the
Retirement System improperly refused to allow him to change
Batorsky's survivorship benefit. Initially, we must note that,
insofar as his claims relate to the 2010 order, they are moot.
Petitioner stipulated to the issuance and implementation of the
2011 order after engaging in negotiations in which he was
represented by counsel. The amended stipulation and order
provides that it sets forth the full agreement between petitioner
and Batorsky and that petitioner entered into it freely and
voluntarily. The 2011 order issued thereafter upon this
stipulation provides that it "replaces and supersedes" both the
2005 and 2010 orders and that those orders are "hereby vacated."
Petitioner does not claim that the 2011 order is invalid or
defective. Accordingly, the rights of the parties related to the


Retirement System because it merely represented a redistribution
between Batorsky and petitioner of the same amounts that were
already payable under the 2005 order and did not alter the
underlying actuarial calculation, as would have resulted if the
survivorship benefit had been changed.
                              -5-                521161

2010 order cannot be affected by the determination of this
appeal, and petitioner's claims premised upon that order are moot
(see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see
also Matter of Feustel v Rosenblum, 6 NY3d 885, 886 [2006]; Reyes
v Sequeira, 64 AD3d 500, 505-506 [2009]).

      As to the 2011 order, petitioner asserts that it should be
amended to alter the survivorship benefit, and that the
Retirement System improperly refused to permit him to do so.
These claims are unavailing, as petitioner is not entitled to the
relief he seeks. The Comptroller has exclusive authority to
determine the validity of applications by Retirement System
members for any form of retirement benefits (see Retirement and
Social Security Law § 74 [b]; Matter of Ratzker v Office of the
N.Y. State Comptroller [N.Y. State & Local Retirement Sys.], 106
AD3d 1321, 1322 [2013], lv denied 22 NY3d 854 [2013]; Matter of
Siepierski v New York State & Local Retirement Sys., 46 AD3d
1316, 1317 [2007]). In making such determinations, the
Comptroller's interpretation of the statute that he or she is
charged with enforcing must be upheld if it is not "'irrational,
unreasonable or inconsistent with the governing statute'" (Matter
of Brandt v DiNapoli, 126 AD3d 1165, 1167 [2015], lv denied 26
NY3d 904 [2015], quoting Matter of Whitehill v New York State
Teachers' Retirement Sys., 142 AD2d 902, 904 [1988]). It was
petitioner's burden to prove that the Retirement System
incorrectly determined that the percentage of the option
specified in the 2005 order became irrevocable on October 31,
2010 pursuant to Retirement and Social Security Law § 90 (e).
This burden was not met.

      The governing statute provides that "an option selection
previously filed by a member . . . may be changed no later than
[30] days following the date of payability of his or her
retirement allowance" (Retirement and Social Security Law § 90
[e]). The date of payability is "the first day of each and every
month beginning on the first day of the month following the
effective date of retirement" (Retirement and Social Security Law
§ 100). Petitioner's retirement became effective on September
25, 2010; thus, the date of payability was October 1, 2010, and
October 31, 2010 was 30 days after the date of payability. There
is no statutory exception permitting a retiree to change a valid
                              -6-                  521161

option election after the time to make such an election has
expired, and "[t]he absence of statutory prohibition does not
permit [this Court] to imply the power with which the Comptroller
must be endowed to conform legally with . . . petitioner's
present demand" (Matter of Morrissey v New York State Employees'
Retirement Sys., 298 NY 442, 449 [1949]; see Matter of O'Brien v
DiNapoli, 116 AD3d 1124, 1126 [2014]). Thus, the determination
that the option election contained in the 2005 order became
irrevocable on October 31, 2010 was neither irrational nor
unreasonable, and must be upheld.

      Petitioner's argument that he sought only a change in the
percentage of the survivorship benefit rather than a change in
the option election is without merit, as the concepts are
inseparable. An erroneous statement by respondents in a
memorandum of law submitted to Supreme Court to the effect that
the Retirement System rejected the 2011 order did not constitute
a concession or admission, but was merely a typographical error,
clearly contradicted by the record. To the extent that
petitioner's remaining arguments are not moot, they are without
merit or premised upon matters beyond the administrative record
and/or "the grounds invoked by the agency" (Matter of Rizzo v New
York State Div. of Hous. & Community Renewal, 6 NY3d 104, 110
[2005] [internal quotation marks and citations omitted]).

     Peters, P.J., Rose and Devine, JJ., concur.


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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
