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BOUFFIER v. FRANK

February 19, 1975

GEORGE BOUFFIER, Plaintiff,
v.
LOUIS J. FRANK, Police Commissioner of the Nassau County Police Department, the NASSAU COUNTY POLICE DEPARTMENT, and ARTHUR LEVITT, as Comptroller of the State of New York, and as Director of the New York State Policemen's and Firemen's Retirement System, Defendants. STANLEY REISERT, Plaintiff, v. LOUIS J. FRANK, Police Commissioner of the Nassau County Police Department, the NASSAU COUNTY POLICE DEPARTMENT, and ARTHUR LEVITT, as Comptroller of the New York State Policemen's and Firemen's Retirement System, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, J.

 In the above captioned actions defendants move to dismiss plaintiffs' complaints pursuant to Rule 12 of the Federal Rules of Civil Procedure on the grounds that this Court lacks jurisdiction over subject matter of these actions and the complaints fail to state claims upon which relief can be granted. The motions in each case were argued together by the same counsel in each case and hence a joint memorandum and order is being made herein. Duplicate originals will be filed in each case.

 Heretofore both plaintiffs moved in their respective actions for preliminary injunctions restraining the defendants from terminating plaintiffs employment and after hearing argument and reading briefs from the parties in each case, this Court denied such applications.

 Plaintiffs are Nassau County Police Officers appointed to the force in 1949 and 1946, respectively. At the time plaintiffs were appointed as Nassau County Police Officers they became members of the New York State Retirement System. Plaintiff BOUFFIER reached the age of 59 years on June 9, 1974 and was retired from the Nassau County Police Department on July 1, 1974 under the provisions of Section 385-a(h) of the New York State Retirement and Social Security Law. Plaintiff REISERT was retired under the same Section on November 30, 1974.

 Subdivision (h) of Section 385-a of such Law provides for the mandatory retirement of a member of the Nassau County Police Department when he reaches the age of 59. Plaintiffs brought their actions attacking the constitutionality of such Section of the Law as being discriminatory against them due to their age.

 By Chapter 564 of the Laws of 1965, Section 85-a of the Retirement and Social Security Law, now renumbered Retirement and Social Security Law, Section 385-a, was enacted. By the provisions of this Section a Nassau County policeman could elect to contribute thereunder and thereby become eligible for retirement at one-half of his final average after serving 20 years and such electing policeman agreed to retire at the end of the calendar month in which he attained the age of 59.

 On October 26, 1963, the plaintiff BOUFFIER, and on September 30, 1965, the plaintiff REISERT, signed and filed written elections to contribute under Section 85-a and authorized deductions to be made in accordance with its provisions; such elections reading in pertinent part as follows:

 
"TO THE COMPTROLLER OF THE STATE OF NEW YORK:
 
"I hereby withdraw any election I have made to contribute under the provisions of Section 71-a or Section 85 and elect to contribute under the provisions of Section 85-a of the Retirement and Social Security Law, as provided by Chapter 564 of the Laws of 1965."

 which form was then signed and acknowledged by the respective plaintiffs.

 Section 7 of Article V of the New York State Constitution provides that membership in any Retirement System of the State of New York or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.

 Notwithstanding such provisions of the New York State Constitution and the aforesaid affirmative written elections made by each of them, the plaintiffs claim that the defendants' action in "forcing" retirement of the plaintiff s at age 59 is a violation of the plaintiffs' constitutional guarantees and Title 42 United States Code Section 1983 in that it is discriminatory, arbitrary, irrational and unreasonable.

 Specifically plaintiffs argue that the discriminatory nature of Section 385-a is shown in Section 384-d of the same Law which sets forth a 62 year old mandatory retirement age as being applicable to every other Police Department in the State of New York except the State Police, Garden City Police Department and the Nassau County Police Department. Plaintiffs claim that Section 384-d affects 90% of the Police Officers in the State of New York, that such discrimination is material and substantial in that if they are forced to retire at the age of 59 there will be a three year gap in which they will not be able to ...


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