Calendar Date: February 16, 2017
Bartlett, McDonough & Monaghan, LLP, White Plains (Erin
O'Connor of counsel), for petitioner.
T. Schneiderman, Attorney General, Albany (William E. Storrs
of counsel), for respondent.
Before: Peters, P.J., Lynch, Rose, Devine and Mulvey, JJ.
MEMORANDUM AND JUDGMENT
pursuant to CPLR article 78 (transferred to this Court by
order of the Supreme Court, entered in Albany County) to
review a determination of respondent denying petitioner's
application for disability retirement benefits.
was a sanitation worker for the City of Yonkers until, as a
result of a disciplinary proceeding, he received notice from
his employer of his termination on June 15, 2012. On May 22,
2013, petitioner applied for disability retirement benefits
pursuant to Retirement and Social Security Law article 15.
The New York State and Local Employees' Retirement System
denied the application on the basis that the application was
untimely. Petitioner requested a hearing and redetermination,
and, following a hearing, the Hearing Officer sustained the
initial determination. Respondent accepted the Hearing
Officer's findings, prompting petitioner to commence this
CPLR article 78 proceeding.
confirm. Respondent has exclusive authority to determine
applications for retirement benefits (see Retirement
and Social Security Law § 74 [b]; Matter of Croshier
v Levitt, 5 N.Y.2d 259, 263-264 ), and his
determination will be upheld if the underlying factual
findings are supported by substantial evidence (see
Matter of Heil v New York State & Local Retirement
Sys., 125 A.D.3d 1088, 1089 , lv denied
25 N.Y.3d 906');">25 N.Y.3d 906 ; Matter of Lewandowski v New York
State & Local Police & Fire Retirement Sys., 69
A.D.3d 1027, 1028 ). An application for disability
retirement benefits must generally be filed "within
three months from the last date the member was being paid on
the payroll" (Retirement and Social Security Law §
605 [b] ; see Matter of Biscardi v New York State
& Local Retirement Sys., 138 A.D.3d 1380, 1381
), or, if the applicant "was placed on unpaid
medical leave, 'not later than  months after'
receiving notice that his or her employment has been
terminated" (Matter of Komolafe v Cuomo, 83
A.D.3d 1258, 1259 , quoting Retirement and Social
Security Law § 605 [b] ) . As we have previously
observed, the phrase "'on the payroll'...
encompass[es] only payments for services rendered while
working" (Matter of Kennedy v New York State &
Local Retirement Sys., 269 A.D.2d 669, 670 ,
lv denied 95 N.Y.2d 753');">95 N.Y.2d 753 ; see Matter of
Denson v DiNapoli, 129 A.D.3d 1271, 1272 ;
Matter of Leonard v Regan, 167 A.D.2d 790, 791-792
the employer's payroll records reflect that
petitioner's employment was terminated on June 15, 2012
and that he last received payment on that day. Following the
hearing, petitioner requested that a transcript of an
arbitration proceeding in which he challenged his termination
be placed into evidence. Petitioner testified at the hearing
that he entered into a settlement agreement during the
arbitration proceeding in which he agreed to resign from his
employment on February 3, 2013 in exchange for back pay that
he ultimately received in December 2013. Contrary to
petitioner's contention, the Hearing Officer properly
declined to consider the transcript since it was not
introduced at the hearing and constituted prohibited
"[r]ebuttal evidence" (2 NYCRR 317.4 [c]; see
Matter of Regan v New York State & Local Employees'
Retirement Sys., 14 A.D.3d 927, 929 , lv
denied 4 N.Y.3d 709, lv dismissed 5 N.Y.3d 824');">5 N.Y.3d 824
; Matter of Knight v New York State & Local
Employees' Retirement Sys., 266 A.D.2d 774, 776
). Moreover, the lump-sum back payment he received as a
result of the settlement agreement does not constitute
payment "on the payroll" for purposes of Retirement
and Social Security Law § 605 (b) (2), as it was not
payment for actual services rendered while working for the
employer (see Matter of Oshode v DiNapoli, 115
A.D.3d 1135, 1136 ; Matter of Kennedy v New York
State & Local Retirement Sys., 269 A.D.2d at 670).
Thus, substantial evidence supports respondent's
determination that petitioner's May 22, 2013 application
for benefits was untimely (see Matter of Kennedy v New
York State & Local Retirement Sys., 269 A.D.2d at
670; Matter of Leonard v Regan, 167 A.D.2d at
791-792). Petitioner's remaining contentions are either
unnecessary to address in light of our determination herein
or are without merit.
Peters, P.J., Lynch, Rose and Mulvey, JJ., concur.
that the determination is confirmed, without costs, and
 The parties do not dispute that petitioner
was not placed on approved medical leave of absence prior to
or at the time of his termination from ...