                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     520014
________________________________

In the Matter of TRACY DENSON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS DiNAPOLI, as Comptroller
   of the State of New York,
   et al.,
                    Respondents.
________________________________


Calendar Date:   April 27, 2015

Before:   McCarthy, J.P., Lynch, Devine and Clark, JJ.

                             __________


      Sheehan Greene Golderman & Jacques, Albany (Thomas D. Latin
of counsel), for petitioner.

      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 a determination of respondent Comptroller which denied
petitioner's applications for disability and performance of duty
disability retirement benefits.

      In August 2009, petitioner – a correction officer employed
by the Department of Corrections and Community Supervision
(hereinafter DOCCS) for over 12 years – received two notices of
discipline and, as a result of those notices, was suspended
without pay. In February 2012, petitioner entered into a
settlement agreement with DOCCS in full satisfaction of both
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notices of discipline. The agreement provided that, for a two-
week period, petitioner would be both placed on administrative
leave with pay and "on [the] payroll." The parties agree that
the agreement did not provide for or allow petitioner, during
that two-week period, to perform any of the services for DOCCS
for which he had been hired. During that two-week period and in
March 2012, petitioner applied for disability retirement benefits
and performance of duty disability retirement benefits (see
Retirement and Social Security Law §§ 507-a, 507-b). Thereafter,
respondent Comptroller adopted the findings of a Hearing Officer
denying both applications upon determinations that they were
untimely as a matter of law. This CPLR article 78 proceeding
ensued, and we confirm.

      The Comptroller is vested with the exclusive authority to
resolve applications for any form of retirement benefits (see
Retirement and Social Security Law § 374 [b]; Matter of Port
Auth. Police Benevolent Assn., Inc. v Anglin, 12 NY3d 885, 886 n
[2009]; Matter of Graziose v DiNapoli, 110 AD3d 1205, 1206
[2013]). "In this regard, if [the Comptroller's] application and
interpretation of the relevant statutes [are] not irrational,
unreasonable or contrary to the statutory language, [his]
determination will be upheld" (Matter of Graziose v DiNapoli, 110
AD3d at 1206 [internal quotation marks and citations omitted];
accord Matter of Price v New York State & Local Employees'
Retirement Sys., 107 AD3d 1212, 1214 [2013]).

      Here, the Comptroller found that the requirement of
Retirement and Social Security Law § 507-a (b) (2) that "an
application be filed within three months from the last date the
member was being paid on the payroll" includes the requirement
that such a member be receiving payments for services rendered
while working. Notably, this Court has held that the same phrase
"on the payroll," as used in Retirement and Social Security Law §
605 (b) (2), contains a requirement that payments are for
services rendered while working (Matter of Kennedy v New York
State & Local Retirement Sys., 269 AD2d 669, 670 [2000]).
Further, the legislative history attending the adoption of
Retirement and Social Security Law § 507-a (b) (2) suggests that
the modification of Retirement and Social Security Law article 14
– which included Retirement and Social Security Law § 507-a (b)
                              -3-                520014

(2) – was for the purpose of providing "the same disability
benefit as other public employees who are covered by [Retirement
and Social Security Law] [a]rticle 15" – which includes
Retirement and Social Security Law § 605 (b) (2) (Governor's Mem
approving L 1983, ch 452, 1983 NY Legis Ann at 2775).
Considering these facts, the Comptroller's interpretation of
Retirement and Social Security Law § 507-a (b) (2) is consistent
with this Court's construction of the identical phrase in
Retirement and Social Security Law § 605 (b) (2), and legislative
history supports the conclusion that the identical phrases in
those two provisions should be given the same construction.
Accordingly, the Comptroller's interpretation of Retirement and
Social Security Law § 507-a (b) (2) as requiring payment for
services rendered while working is not irrational, unreasonable
or contrary to the statutory language. Given petitioner's
concession that he did not render any services while working
after August 2009, we confirm the determination that his March
2012 application for disability retirement benefits was untimely.

      We reach a similar conclusion regarding petitioner's
application pursuant to Retirement and Social Security Law
§ 507-b. The timeliness of an application pursuant to this
statute is governed by 2 NYCRR 369.2 (see Matter of Campanelli v
McCall, 288 AD2d 680, 682 [2001], lv denied 97 NY2d 611 [2002]).
Pursuant to 2 NYCRR 369.2, "[t]o be effective, an application for
performance of duty disability retirement under [Retirement and
Social Security Law §] 507-b . . . shall be filed within two
years after the member is first discontinued from service, as
provided . . . under . . . subdivision a of [Retirement and
Social Security Law §] 63." In turn, Retirement and Social
Security Law § 63 (a) (2) provides that a member is only entitled
to a retirement allowance if the application is timely in
relationship to the member being "[a]ctually in service upon
which his [or her] membership is based." An interpretation that
"actually in service" means that a member must be providing the
services for the employer that entitled him or her to membership
is neither contrary to statutory language (see generally
Retirement and Social Security Law § 501) nor irrational or
unreasonable (see generally Foote v Regan, 103 AD2d 918, 919
[1984]). Because petitioner did not perform the services that
entitled him to membership after August 2009, we also confirm the
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determination that his March 2012 application for performance of
duty disability retirement benefits was untimely (see 2 NYCRR
369.2; Matter of Campanelli v McCall, 288 AD2d at 682).

      Finally, we agree with the Comptroller's adopted conclusion
that there were no material factual issues in dispute and,
therefore, we reject petitioner's contention that the Comptroller
applied an incorrect standard as to findings of fact.

     Lynch, Devine and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
