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February 26, 2003


The opinion of the court was delivered by: William C. Conner, Senior District Judge


In this action under 42 U.S.C. § 1983 for alleged employment discrimination, in failing to rehire him in 1997, plaintiff Ralph M. Purdy seeks damages for lost wages and pension benefits. Defendants, Town of Greenburgh ("the Town"), Paul J. Feiner, individually and as Supervisor of the Town and John A. Kapica, individually and as Chief of Police of the Town. bring the instant motion for partial summary judgment pursuant to FED. R. Civ. P. 56 on the ground that plaintiff would not have been entitled to additional pension benefits even if he had been rehired.*fn1 For the reasons that follow, the Court grants defendants' motion.


Plaintiff was born on November 10, 1936. (Purdy Aff. ¶ 18.) On April 25, 1960 he was hired by the Greenburgh Police Department ("GPD") and served as a police officer for approximately sixteen years. (Pl. Dep. at 24.) On February 20, 1976, after an evidentiary hearing before the Town Board, plaintiff was terminated for knowingly violating Chapter 9.5.14 of the GPD Rules and Regulations (use of his police office for political purposes). (Defs. Ex. G.) Plaintiff has not been employed as a police officer since 1976. During his employment with the Town, plaintiff was a member of the New York State and Local Retirement System Police and Fire Retirement System ("Pension System"). In 1991, when he reached age 55, plaintiff applied for and received pension benefits from the Pension System based upon his accrued service credit. His application was accepted and plaintiff retired. Plaintiff has been receiving a pension from the Pension System since December 1, 1991, the effective date of his retirement, until the present time. In March 1995, plaintiff sent Greenburgh Town Supervisor Feiner a letter expressing his interest in applying for a position as police officer. (Kapica Aff. ¶ 3.) Feiner referred plaintiff to Police Chief Kapica who has authority to make final recommendations to appoint applicants to the position of police officer. On April 2, 1996, plaintiff submitted a completed application for employment with the GPD which was considered by Kapica. (DeCarlo Aff. ¶ 4, Ex. A.) Although the reasons for the determination are in dispute, Kapica decided that plaintiff was not qualified and that he would not recommend him for appointment as a police officer. Defendants contend that since 1977, plaintiff has been steadily employed by the Police Union at a salary higher than he would have earned if he had been rehired by the GPD and therefore has suffered no loss of income. However, plaintiff also seek damages in the form of lost pension benefits that he claims he would have received had he been rehired by defendants. Defendants maintain that plaintiff cannot prove damages in the form of lost pension benefits under the applicable sections of the New York State Retirement and Social Security Law ("Retirement Law").


I. Summary Judgment Standard

Defendants move for partial summary judgment pursuant to FED. R. Civ. P. 56. Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ticali, 41 F. Supp.2d at 254. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255. Summary judgment is warranted when the nonmovant has no evidentiary support for an essential element on which it bears the burden of proof. Celotex, 477 U.S. at 322-23; Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir. 1991). Legislative history and statutory interpretation are questions of law appropriately decided on a motion for summary judgment. Saroyan v. William Saroyan Foundation, 675 F. Supp. 843 (S.D.N.Y. 1987).

II. Applicable Law

The instant action requires us to navigate the unfamiliar territory of the Retirement Law. We begin with plaintiff's argument that, pursuant to § 375-i, he would be entitled to a pension at his own election at any time after completion of 20 years of service as a police officer with the Town. (Pl. Mem. Opp. Summ. J. at 1.) Section 375-i(c) states that. "In the case of persons who last became members on or after July first, nineteen hundred seventy-three, the provisions of this section shall be applicable only to those retiring or separating in vested status prior to July first, nineteen hundred seventy-four." Here, had he been hired, plaintiff would have last become a contributing member of the system at the earliest on June 13, 1997. As defendants point out, it is now impossible for plaintiff to retire or separate in vested status prior to July 1, 1974. (Defs. Mem. Supp. Summ. J. at 6.) Thus, as a matter of law, plaintiff cannot qualify for increased pension benefits under § 375-i.*fn3

We turn next to defendants' argument that plaintiff cannot qualify for any increased pension benefits as a retired member by combining his prior service credits with any newly earned service credits earned after a return to public service under § 401.*fn4 Section 401(a) provides:

If a retired member, receiving a retirement allowance . . . returns to active public service, . . . and is eligible for membership in the policemen's and firemen's retirement system, he thereupon shall become a member and his retirement allowance shall cease. In such event, he shall contribute to the policemen's and firemen's retirement system as if he were a new member. Upon his subsequent retirement he shall:
1. Be credited with all member service earned by him since he last became a member of the policemen's and firemen's retirement system; and
2. Received (sic) a retirement allowance which shall consist of:
(b) The pension . . . which he was receiving immediately prior to his last restoration to membership, plus a pension . . . based upon the member service credit earned by him since he last became a member. Such latter provisions shall be ...

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