State of New York Supreme Court, Appellate Division Third Judicial Department
December 6, 2012
IN THE MATTER OF LORENZO LICOPOLI, APPELLANT,
NEW YORK STATE TEACHERS' RETIREMENT SYSTEM, RESPONDENT.
Appeal from a judgment of the Supreme Court (Breslin, J.), entered February 14, 2012 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent calculating petitioner's retirement benefit.
The opinion of the court was delivered by: McCarthy, J.
MEMORANDUM AND ORDER
Calendar Date: November 19, 2012
Before: Peters, P.J., Spain, Kavanagh, McCarthy and Egan Jr., JJ.
Petitioner was superintendent of the Mineola Union Free School District from 2001 until his retirement in 2009. In 2006, petitioner and the school district entered into an employment contract covering the period of July 1, 2006 through June 30, 2009. This agreement provided petitioner with basic annual salary increases of four percent. The agreement further required petitioner to make a gift of one percent of his annual salary to the school district each year. Additionally, upon petitioner's resignation for the reason of retiring, he was obligated to make a gift of $15,000 to the school district. The agreement was later amended at petitioner's request to permit him to make the $15,000 gift to the school district's parent-teacher associations. Upon petitioner's retirement in 2009, respondent determined that the "give back" sums must be excluded from the calculation of his final average salary. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78. Supreme Court dismissed the petition, and petitioner appeals.
In petitioner's case, respondent must determine his retirement benefits based upon a calculation of his final average salary, that is, the actual compensation earned during either the last three or five years of his employment, whichever is higher (see Education Law § 501  [a], [b]; Matter of Cooper v New York State Teachers' Retirement Sys., 19 AD3d 724, 725 ). To prevent artificial inflation of this figure, any form of extra payment made in anticipation of retirement must be excluded (see Matter of Palandra v New York State Teachers' Retirement Sys., 84 AD3d 1689, 1690 ; Matter of Holbert v New York State Teachers' Retirement Sys., 43 AD3d 530, 532 ).
Petitioner argues that the monies paid to him that were required to be gifted back to the school district constituted regular compensation because they did not reflect unusual or extraordinary increases in his annual salary and he would have made the gifts whether or not required to pursuant to the agreement. While a four percent annual salary increase would not, in and of itself, appear extraordinary, there is no dispute that petitioner was required to return a portion of that amount to the school district. The effect of this arrangement was that petitioner did not actually receive those monies as employment compensation. We cannot find that respondent irrationally concluded that the portions of petitioner's salary that were required to be gifted back must be excluded from the calculation of his retirement benefit. Accordingly, we will not disturb respondent's determination (see Matter of Palandra v New York State Teachers' Retirement Sys., 84 AD3d at 1690; Matter of Cooper v New York State Teachers' Retirement Sys., 19 AD3d at 726).
Peters, P.J., Spain, Kavanagh and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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