The opinion of the court was delivered by: Michael D. Stallman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Motions bearing sequence numbers 007 and 008 are consolidated for disposition.
In motion sequence 007, petitioner The Correction Officers' Benevolent Association (COBA) moves, pursuant to CPLR 901, for an order certifying itself as the class representative of all COBA tier 3 members hired between July 26, 1976 and December 19, 1990, who retired with credited service. Motion sequence 008 is the restored and recalendared Article 78 proceeding; based on petitioners' Amended Verified Petition, which petitioners assert is a "hybrid" Article 78 proceeding and declaratory judgment action. In the Article 78 proceeding, COBA and petitioner Michael DeBlasio (DeBlasio) seek an order declaring unlawful the policy and practice of respondent New York City Employees' Retirement System (NYCERS) whereby NYCERS requires 20 years of correction officer service, rather than credited service, in order for 5th and 10th year longevity earnings to be pensionable, and whereby NYCERS requires 25 years of correction officer service, rather than credited service, in order for 5th, 10th, 15th and 20th year longevity earnings to be pensionable.
Petitioners also seek an order compelling NYCERS: (1) to recalculate, retroactive to March 29, 2003, the pensions of all correction officers who retired with 20 years of credited service to include their 5th and 10th year longevity earnings, if any, in the computation of their final average salaries; and (2) to recalculate, retroactive to March 29, 2003, the pensions of all correction officers who retired with 25 years of credited service to include their 5th, 10th and 15th year longevity earnings, if any, in the computation of their final average salaries.
On March 29, 1982, DeBlasio was hired as a correction officer by the New York City Department of Correction. On that same date, he became a member of NYCERS.
In 1990, the New York State Legislature enacted a program titled the "Twenty-year retirement program for New York city correction members below the rank of captain," pursuant to section 504-a of the New York Retirement and Social Security Law (RSSL). DeBlasio opted to become a member of that program.
The program provides that each member is entitled to receive a pension equal to fifty percent of his or her "final average salary" upon retirement with twenty years of "credited service." See, RSSL § 504-a(c). Final average salary is defined as the average wages earned by the member during any three consecutive years which provide the highest average wage. RSSL § 512(a).
DeBlasio retired on February 1, 2002, with 20.98 years of credited service. Specifically, NYCERS credited him with 19.8 years of service as a correction officer and 1.139 years of prior service with the New York City Parks Department.
By letter dated May 10, 2002, NYCERS informed DeBlasio that his pension would be $31,477 per year. DeBlasio, believing that amount to be too low, filed a complaint with NYCERS on May 28, 2002, seeking an explanation as to how it had arrived at the amount of his pension.
In a letter dated March 21, 2003, NYCERS informed DeBlasio that it had reviewed his case and determined that no revisions were needed with regards to the calculation of his final average salary.*fn1 Among other things, the letter contained a table listing DeBlasio's salaries for the years 1997-2002, demonstrating how his final average salary was calculated. NYCERS specifically noted that it did not include "longevity earnings" in the final average salary calculation.
Longevity earnings are compensation increases which are afforded to correction officers pursuant to the Collective Bargaining Agreement (CBA) established by COBA and the City of New York. Pursuant to Article VI and Article VIII of the CBA, longevity adjustments are awarded to correction officers after 5, 10, 15 and 20 years of service.
Article VIII, section 1(c) of the CBA provides that longevity adjustments after the 5th and 10th years would not be computed as salary for pension purposes until after the officer completed 20 years of service. The 15th and 20th year adjustments would not be computed as salary for pension purposes until after the officer completed 25 years of service. Significantly, the CBA does not provide a definition of the term "service".
In the March 21, 2003 letter, NYCERS stated that DeBlasio had less than 20 years of service as a correction officer. As such, NYCERS determined that his longevity earnings were "non-pensionable" under the terms of the CBA. DeBlasio then commenced this Article 78 proceeding on July 28, 2003, asserting that NYCERS violated Article V, §7 of the New York State Constitution by failing to include his 5th and 10th year longevity earnings in the calculation of his final average salary.
On November 26, 2003, this proceeding was marked off the calendar without prejudice to renewal, pending the outcome of a proceeding titled Matter of McGarrigle v City of New York which also involved the exclusion of longevity payments in the calculation of a member's final average salary. That proceeding eventually resulted in a judgment in favor of the petitioners, which was affirmed by the Appellate Division, First Department. See, Matter of McGarrigle v City of New York, 4 Misc 3d 1004(A), 2004 NY Slip 50652(U)(NY Sup 2004), affd 23 AD3d 196 (1st Dept 2005). The judgment became final on June 6, 2006, when the Court of Appeals denied respondents' motion for leave to appeal. See, 7 NY3d 701 (2006).
On January 11, 2007, this court restored the instant proceeding to the calendar and respondents served an Answer to the Petition on March 9, 2007. COBA was joined as a necessary party on November 1, 2007.
David McGarrigle became a correction officer in 1982 and, as such, also became a member of NYCERS. In 1991, McGarrigle elected to participate in the "Twenty-year retirement program for New York city correction members below the rank of captain". RSSL § 504-a.
In 2001, McGarrigle decided to retire, but he did not yet have 20 years of credited service. Pursuant to RSSL § 1000, he purchased nine months of prior federal military service rendered from November 1974 through August 1975. Thereafter, on August 10, 2001, he retired with the requisite 20 years of credited service. However, NYCERS excluded ...