                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 5, 2017                   523133
________________________________

In the Matter of MAUREEN J.
   McCAULEY,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE AND LOCAL
   EMPLOYEES' RETIREMENT SYSTEM
   et al.,
                    Respondents.
________________________________


Calendar Date:   November 14, 2016

Before:   McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.

                             __________


     Maureen J. McCauley, Albany, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for New York State and Local Employees'
Retirement System, respondent.

      John T. Biscone, Ravena, for Estate of Richard Ely,
respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the Supreme Court (McGrath, J.),
entered July 20, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of the Comptroller denying
petitioner's request for retirement death benefits.

      Petitioner and Richard Ely (hereinafter decedent) were
married in 1970. Decedent was employed by the Division of
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Criminal Justice Services and was a member of respondent New York
State and Local Employees' Retirement System. During decedent's
membership, he completed three forms designating petitioner as
the primary beneficiary of his retirement benefits, including
retirement death benefits, with the most recent form dated May
14, 1992. Thereafter, on August 30, 1999, petitioner and
decedent entered into a separation agreement that was ultimately
incorporated, but not merged, into a divorce judgment, issued on
May 28, 2004.

      Decedent died on October 20, 2009. At the time of
decedent's death, petitioner was still listed as the primary
beneficiary of decedent's retirement death benefits, with
decedent's parents, both of whom were deceased, as alternative
beneficiaries. Petitioner then sought to receive decedent's
death benefits. The Retirement System advised that, pursuant to
EPTL 5-1.4, decedent's May 14, 1992 benefit designation was
revoked. In September 2010, an executor was appointed to
represent respondent Estate of Richard Ely (hereinafter the
estate). A hearing was then held on petitioner's application,
and an Administrative Law Judge concluded that petitioner failed
to meet her burden of proving her entitlement to decedent's
retirement death benefits. The Comptroller subsequently adopted
the decision of the Administrative Law Judge and denied
petitioner's application. Petitioner commenced this CPLR article
78 proceeding. Supreme Court found, among other things, that
petitioner's request was properly denied under EPTL 5-1.4.
Subsequently, petitioner appealed from that judgment, wherein
this Court reversed the judgment and remitted the matter for
Supreme Court to join the estate as a necessary party or to
permit joinder by stipulation or motion (112 AD3d 1211, 1212
[2013]). The parties stipulated to joinder of the estate and the
court granted all parties additional time to submit further
memoranda. Thereafter, Supreme Court again dismissed the
petition. Petitioner appeals, and we affirm.

      Pursuant to EPTL 5-1.4, the Comptroller properly denied
petitioner's application for decedent's retirement death
benefits. EPTL 5-1.4 (a) provides that "[e]xcept as provided by
the express terms of a governing instrument, a divorce . . .
revokes any revocable . . . disposition or appointment of
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property made by a divorced individual to, or for the benefit of,
the former spouse."1 Such a disposition is to be interpreted as
though "the former spouse had predeceased the divorced individual
as of the time of the revocation" (EPTL 5-1.4). According to
legislative history, the pertinent amendment to EPTL 5-1.4, which
was enacted prior to decedent's death, "would take effect
immediately and shall apply [to a] disposition [that] takes
effect only at the death of the person who executes it and such
person dies on or after the effective date of this act" (Senate
Introducer Mem in Support, Bill Jacket, L 2008, ch 173).
Moreover, "EPTL 5-1.4 was enacted to prevent a [decedent's]
inadvertent disposition to a former spouse where the parties'
marriage terminated by annulment or divorce and the former spouse
is a beneficiary in a[n] . . . instrument which the [decedent]
neglects to revoke" (Matter of Schmeid, 88 AD3d 803, 804 [2011]).
Therefore, according to the plain language of the EPTL 5-1.4 and
legislative history, the statute applies to dispositions such as
the one made by decedent and to persons who, like decedent, died
after the amendment to the statute. Thus, as a matter of law,
petitioner is not entitled to decedent's retirement death
benefits (see id.).

      Further, and contrary to petitioner's contention, the
application of EPTL 5-1.4 in this manner does not give the
statute retroactive effect. "Retroactive statutes are those
which impair vested rights or alter past transactions or
considerations" (Matter of Scism v Fiala, 122 AD3d 1197, 1198
[2014] [internal quotation marks and citation omitted]). "A
statute is not retroactive . . . when made to apply to future
transactions, merely because such transactions relate to and are
founded upon antecedent events" (Matter of Allied Grocers Coop. v
Tax Appeals Trib., 162 AD2d 791, 792 [1990] [citations omitted]).
Decedent could have altered his death benefits up until his
death, which occurred after the relevant amendment to EPTL 5-1.4,
and petitioner had no vested right to the death benefits at any


     1
        Petitioner does not dispute the fact that the retirement
death benefits designation does not contain express terms that
would prevent the revocation of the benefit in these
circumstances.
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time prior to that amendment (see Blackmon v Estate of Battcock,
78 NY2d 735, 739 [1991]; Matter of Scism v Fiala, 122 AD3d at
1198).

      Finally, additional proof established that petitioner
affirmatively waived any right to the death benefits in the
separation agreement. "It is well established that the terms of
a separation agreement incorporated, but not merged, into a
judgment of divorce are contractually binding on the parties"
(Matter of Levinson v Levinson, 298 AD2d 673, 674 [2002]
[citations omitted]; see Matter of Stewart v Stewart, 93 AD3d
907, 908 [2012]). "A stipulation between parties is an
independent contract subject to the principles of contract
interpretation, including the rule requiring courts to discern
the parties' intent from the four corners of the stipulation
without regard to extrinsic evidence when the contract language
is unambiguous" (Matter of Black v New York State & Local
Employees' Retirement Sys., 30 AD3d 920, 921 [2006] [citations
omitted]). According to the separation agreement between
petitioner and decedent, the parties waived "any claim in and to
the pension of the other," and that "[e]ach pension shall
hereafter be the sole and separate property of the respective
parties and each waives his or her claim to any and all other
rights, including survivorship benefits." Accordingly, by the
unambiguous terms of the separation agreement (see Matter of
Sbarra, 17 AD3d 975, 977 [2005]), petitioner explicitly waived
survivorship benefits. Petitioner's remaining contentions are
without merit.

     Garry, Rose, Mulvey and Aarons, JJ., concur.
                        -5-                  523133

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
