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February 5, 1995

MARK H. JORDAN, Plaintiff,

Thomas J. McAvoy, Chief U.S. District Judge

The opinion of the court was delivered by: THOMAS J. MCAVOY


 Plaintiff Mark H. Jordan filed this action in the small claims part of Troy City Court, Troy, New York, on October 14, 1993. Defendant Retirement Committee of the Contributory Retirement Plan at Rensselaer Polytechnic Institute removed the action by notice of removal filed November 3, 1993. Pursuant to an order by Magistrate Judge Ralph W. Smith the parties have filed with the Court a Stipulated Statement of Facts and cross-motions for summary judgment.


 Plaintiff retired from Rensselaer Polytechnic Institute (hereinafter RPI) as of July 1, 1977 and is a member of RPI's Contributory Retirement Plan (hereinafter CRP). In mid-may 1991 plaintiff claimed that certain benefit increases received since his retirement had been miscalculated resulting in underpayments to him since 1980. On December 12, 1991, the defendant CRP Retirement Committee granted plaintiff's claim and advised him that it would undertake to recalculate his benefit (and the benefit of all similarly situated retirees), and award him any underpayments plus interest "as soon as administratively feasible." (Stip. Stmnt. of Facts, Ex. 6). On July 23, 1992 plaintiff received a check for $ 689.45 representing $ 116.28 in prior underpayments (after certain prior overpayments not relevant to this action were netted out), and $ 573.17 in interest. That interest payment reflects the Retirement Committee's decision to pay interest at the actual annual rate of return earned on plan assets during the relevant period. (Stip. Stmnt. of Facts, Ex. 11). Interest was calculated at that rate from 1980, when the plaintiff was first underpaid, to July of 1992, the date of actual payment to plaintiff of the underpaid benefits and interest.

 On September 24 and at plaintiff's request the Retirement Committee supplied plaintiff with a chart reflecting the annual rate of return on plan assets for the relevant period. (Stip. Stmnt. of Facts, Ex. 8). While the rate of return fluctuated widely from 1980 to 1991 (from a low of 0.45% in 1981 to a high of 31.28% in 1991) plan assets reflected a positive return in all years except 1992. In 1992, the rate of return from which plaintiff's interest was calculated (for the period of January, 1992 to July 1992, when plaintiff received his award) was - 1.64%. *fn1"

 On October 20, 1992 plaintiff proffered a claim to the Retirement Committee for underpayment of interest on the recalculated benefits "conceded by the Committee on December 12, 1991 and actually paid on July 23, 1992." (Stip. Stmnt. of Facts, Ex. 10.) The Committee denied those interest claims on December 8, 1992. (Stip. Stmnt. of Facts, Ex. 11.) On February 3, 1993 plaintiff filed a notice of appeal as to that denial. (Stip. Stmnt. of Facts, Ex. 12.) That appeal was decided unfavorably to plaintiff on October 1, 1993. (Stip. Stmnt. of Facts, Ex. 14.)

 Comes now plaintiff seeking from this Court an award of the interest he claims was underpaid. While plaintiff originally asserted various interest underpayment claims before the retirement committee and sought interest rates higher than the plan rate of return for different relevant periods of underpayment, the gravamen of his complaint before this Court is as follows: that for the period of December 12 1991 (when the Committee conceded plaintiff's claim) to July 23 1992, (when, upon completion of its re-calculations the Committee actually paid plaintiff his due) the Committee could not lawfully calculate his interest at the rate of return earned on plan assets (which as stated infra was -1.64%). *fn2" Plaintiff makes no objection to application of the rate of return formula as applied to the underpayments prior to the Committee's determination in his favor in December of 1991.

 While plaintiff acknowledges that there is no plan provision directing or defining the payment of interest under his circumstances, he points to plan § 1.3.i which defines "credited interest" to be paid to members for withdrawn contributions. Plaintiff suggests that by analogy either that plan provision or N. Y. Civ. Prac. L. & R. § 5004 (McKinney's 1992), the New York statutory post-judgment interest rate, *fn3" or, 26 U.S.C. § 6621, the statutory interest rate applied to tax over and underpayments under Internal Revenue Code § 6621, should be used to calculate the interest applicable to his award during the period after the committee agreed to recalculate his benefit but before actual payment was received by plaintiff.


 Both party's have now moved for summary judgment.

 A. The Standard for Summary Judgment.

 Under Fed. R. Civ. Pro. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, Eastway Construction Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987). It ...

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