                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 16, 2015                    519417
________________________________

In the Matter of LAURA FLERX
   et al.,
                    Petitioners,
      v
                                            MEMORANDUM AND JUDGMENT
THOMAS P. DiNAPOLI, as
   Comptroller of the State of
   New York, et al.,
                    Respondents.
________________________________


Calendar Date:   February 17, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      Ruskin Moscou Faltischek, PC, Uniondale (E. Christopher
Murray of counsel), for petitioners.

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

                             __________


McCarthy, J.P.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review four determinations of respondent Comptroller which denied
petitioners' applications to enroll in the New York State and
Local Employees' Retirement System.

      Petitioners are employees of the Stony Brook University
Medical Center (hereinafter SBUMC). Petitioners Laura Flerx,
Elefteria Hertzson and Scot Weber allege that, shortly after they
commenced their employment, they were informed by SBUMC
representatives that they could not enroll in the New York State
                              -2-                519417

and Local Employees' Retirement System (hereinafter NYSLERS) and
that they had to enroll in the Optional Retirement Program
(hereinafter ORP). Petitioner Steven Schindler alleged that he
never completed a retirement plan enrollment form, but was
nonetheless enrolled in ORP. Upon learning, years later, that
they had been eligible for enrollment in NYSLERS, petitioners
applied for enrollment but were denied. Following a hearing,
petitioners' applications were denied by a Hearing Officer.
Respondent Comptroller subsequently adopted the Hearing Officer's
determinations. Petitioners commenced this proceeding seeking to
annul the determinations and obtain enrollment in NYSLERS.

      The Comptroller's determinations should be upheld because
they are supported by substantial evidence. Courts will not
disturb the Comptroller's application and interpretation of
relevant statutes unless it is irrational or contrary to the
plain language of the statutes (see Matter of Price v New York
State & Local Employees' Retirement Sys., 107 AD3d 1212, 1214
[2013]). Education Law § 393 (1) (a) provides that eligible
employees "shall elect" to join either NYSLERS or ORP. If an
employee fails to make an election, he or she "shall be deemed to
have elected membership in [NYSLERS]" (Education Law § 393 [1]
[b]). Upon enrollment in ORP, an employee becomes "ineligible
for membership" in NYSLERS (Education Law § 393 [2]).

      Flerx and Weber each testified that they met with a human
resources representative of SBUMC who informed them that they
could not enroll in NYSLERS, so they filled out forms electing
ORP. Hertzson said that she received the same information, but
did not check the box for ORP on the retirement program election
form. Although she alleges that someone else must have checked
the box, Hertzson acknowledged that she completed and signed a
separate application to enroll in ORP. Schindler testified that
he never enrolled in a retirement program and the enrollment form
produced by SBUMC was forged. Despite this alleged forgery and
not having enrolled in a retirement program, Schindler was aware
that he had a pension plan, which was ORP, and did not object or
raise any questions about it for 25 years after his employment
began.
                              -3-                519417

      The Comptroller determined, through a reasonable
application of these facts and the relevant statutes, that
petitioners were ineligible for enrollment in NYSLERS because
they were enrolled in ORP (see Education Law § 393 [2]).
Petitioners contend that they did not "elect" to join ORP as
opposed to NYSLERS – inasmuch as an election implies a voluntary
choice, which was impossible here because they were misinformed
and told that they had no options – so they should be deemed
members of NYSLERS pursuant to Education Law § 393 (1) (b). As
Education Law § 393 does not define "elect," and it is reasonable
to interpret that word to include the filing of an enrollment
form for one particular retirement program regardless of the
applicant's knowledge of other options, we will not disturb the
Comptroller's interpretation (see Matter of Price v New York
State & Local Employees' Retirement Sys., 107 AD3d at 1214).

      Finally, the Comptroller is not estopped from denying
enrollment in NYSLERS, as required by statute once petitioners
were enrolled in ORP (see Education Law § 393 [2]), due to
erroneous advice supplied by petitioners' employer (see
Retirement and Social Security Law § 45; Matter of Price v New
York State & Local Employees' Retirement Sys., 107 AD3d at 1215-
1216; Matter of Grella v Hevesi, 38 AD3d 113, 117 [2007]; Matter
of Hession v New York State & Local Employees' Retirement Sys.,
24 AD3d 1008, 1010 [2005]; see also Matter of Dear v New York
State & Local Retirement Sys., 115 AD3d 1141, 1143 [2014], lv
denied 23 NY3d 905 [2014]; Matter of Limongelli v New York State
Employees' Retirement Sys., 173 AD2d 904, 906 [1991]).

     Egan Jr., Devine and Clark, JJ., concur.
                              -4-                  519417

      ADJUDGED that the determinations are confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
