                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 17, 2016                    521602
________________________________

In the Matter of ALPHONSE A.
   GRAZIOSE,
                    Petitioner,
      v

THOMAS P. DiNAPOLI, as
   Comptroller of the State of              MEMORANDUM AND JUDGMENT
   New York and Administrator
   of the New York State
   Employees' Retirement
   System and the New York
   State and Local Police and
   Fire Retirement System,
                    Respondent.
________________________________


Calendar Date:   February 18, 2016

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

                             __________


      Law Office of Wayne J. Schaefer, Smithtown (Wayne J.
Schaefer of counsel), for petitioner.

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

                             __________


Devine, J.

      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 denying petitioner's
application for reinstatement to tier 1 membership in the New
York State and Local Employees' Retirement System.
                              -2-                521602

      Petitioner, a former tier 1 member of the New York City
Police Pension Fund (hereinafter NYCPPF), began work as a police
officer for the New York City Police Department in August 1966.
After leaving this employment on September 24, 1972, he withdrew
his contributions from the NYCPPF on November 24, 1972. In
November 1977, petitioner began working for the Nassau County
Sheriff's Department and became a tier 3 member of the New York
State and Local Employees' Retirement System (hereinafter the
Retirement System). He subsequently worked for the Office of
Court Administration while retaining such membership. Petitioner
began working for the Village of Amityville Police Department in
1981, and transferred his membership to the New York State and
Local Police and Fire Retirement System. Based upon his entry
date in the Retirement System, he was granted tier 2 status and
retired as a tier 2 member in July 1986.

      Petitioner unsuccessfully requested that his status be
changed to tier 1 based upon his prior membership in NYCPPF,
prompting him to commence a CPLR article 78 proceeding. This
Court annulled respondent's determination and remitted the matter
for further proceedings to ascertain petitioner's eligibility for
tier 1 status under Retirement and Social Security Law § 40 (f)
(5) (Matter of Graziose v DiNapoli, 110 AD3d 1205, 1207 [2013]).
Following a further hearing, the Hearing Officer found that
petitioner was not eligible. Respondent adopted the Hearing
Officer's findings of fact and conclusions of law with a
supplemental conclusion of law, and this CPLR article 78
proceeding ensued.

      Initially, it is well settled that respondent is vested
with the exclusive authority to decide applications for
retirement benefits (see Retirement and Social Security Law § 374
[b]; Matter of Tamucci v DiNapoli, 133 AD3d 960, 961 [2015];
Matter of Heil v New York State & Local Retirement Sys., 125 AD3d
1088, 1088 [2015], lv denied 25 NY3d 906 [2015]). Notably,
"[c]ourts will not disturb [respondent's] application and
interpretation of relevant statutes unless [they are] irrational
or contrary to the plain language of the statutes" (Matter of
Flerx v DiNapoli, 127 AD3d 1449, 1450 [2015], lv denied 26 NY3d
901 [2015]; see Matter of Denson v DiNapoli, 129 AD3d 1271, 1272
[2015]).
                              -3-                521602

      Retirement and Social Security Law § 40 (f) (5) governs the
resumption of membership in the Retirement System after it has
been terminated due to a member's discontinuance of service. It
provides, in relevant part, that membership shall cease "[w]hen a
member . . . has discontinued service with the state or a
participating employer for a period of at least thirty
consecutive days and has requested termination of membership on a
form prepared by [respondent]. . . by filing such form with
[respondent]" (Retirement and Social Security Law § 40 [f] [5]).
The statute further provides that "[i]f such person subsequently
rejoins the [R]etirement [S]ystem within five years from the date
he [or she] discontinued service with the state or a
participating employer, such person shall be entitled to every
retirement right, benefit and privilege which would have been
available to him [or her] had he [or she] reentered employment on
the date of such discontinuance from service" (Retirement and
Social Security Law § 40 [f] [5]).

      The statute presupposes "[m]embership in the retirement
system" prior to discontinuing service (Retirement and Social
Security Law § 40 [f]), which is clearly defined as the "New York
State and [L]ocal Employees' Retirement System" (Retirement and
Social Security Law § 10; see Retirement and Social Security Law
§ 2 [16]). The statute does not mention any other type of
retirement system, even those that are operated by public or
quasi-public organizations, such as NYCPPF. Indeed, it defines
participating employers as those participating in the Retirement
System (see Retirement and Social Security Law § 2 [20]).
Furthermore, its requirement that discontinuance of membership be
done on a form filed with respondent suggests that it covers only
the Retirement System (see Retirement and Social Security Law
§ 40 [f] [5]). Respondent does not administer the NYCPPF (see
Administrative Code of City of NY § 13-216), and petitioner did
not file the required form with respondent when he ended his
service with the New York City Police Department and withdrew his
contributions from NYCPPF. In view of the foregoing, and giving
deference to respondent's interpretation of the statute that he
is charged with administering (see Matter of Brandt v DiNapoli,
126 AD3d 1165, 1167 [2015], lv denied 26 NY3d 904 [2015]), we
find no support for the conclusion that membership in the NYCPPF
equates to membership in the Retirement System for purposes of
                              -4-                  521602

Retirement and Social Security Law § 40 (f) (5). Therefore,
respondent rationally refused to reinstate petitioner to tier 1
status based upon his prior NYCPPF membership, and we decline to
disturb his determination. Given our disposition, we need not
address petitioner's remaining claim.

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



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
