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 §
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
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
(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 computed as if
he were a new member when he last became a member.
Thus, pursuant to § 401(a), when a retired member returns to active
service, he becomes a member of the Pension System and all retirement
benefits he is currently receiving cease by operation of law. (Defs.
Mot. Supp. Summ. J. at 4.) The member who returns to active service then
begins to accrue service credits toward a second pension as if he were a
new member in the Pension System. Upon the member's second retirement
from the Pension System, he would be entitled to essentially two
pensions: (1) the reinstatement of the pension benefits he was receiving
immediately prior to his last restoration to public service; and (2) a
second pension based upon the member service credit earned since the
restoration to public service. (Id.) The second pension is computed as if
he were a new member as of the time of restoration to service. As
defendants explain, the retired member who returns to service is not
entitled to combine the service credits earned by him in successive
periods of public service, with one exception. (Id.) That exception under
§ 401(a) provides:
Where such member shall have earned at least two years
of member service credit after restoration to active
service, the total service credit to which he was
entitled at the time of his earlier retirement may, at
his option, again be credited to him and upon his
retirement he shall be credited in addition with all
member service earned by him subsequent to his last
restoration to membership. . . .
Again defendants are correct on the law in their contention that a
retired member may combine his prior service credits with the newly
earned service credits earned after a return to public service only where
the member has earned at least two years of active service credit after
his return to active service. (Id. at 5.) However, the prior and new
service credits can only be combined "upon [the member's] subsequent
retirement." Thus, two additional years of service credit must be earned
prior to retirement in order to qualify for the combination option.
However, plaintiff cannot earn the requisite two additional years of
service credit for the same reason plaintiff cannot qualify for a pension
under § 384-d.