In the Matter of Robert T. Lane, Petitioner,
Thomas D. Dinapoli, as State Comptroller, et al., Respondents.
Calendar Date: November 12, 2019
Richard C. Hand, Brightwaters, for petitioner.
Letitia James, Attorney General, Albany (Kate H. Nepveu of
counsel), for respondents.
Before: Garry, P.J., Egan Jr., Lynch and Aarons, JJ.
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 Comptroller, among other
things, denying petitioner's application for military
service credit in the calculation of his retirement benefits.
1966, petitioner graduated from the State University Maritime
College with a Bachelor's degree in marine engineering, a
United States Coast Guard marine officer's license and
the commission of ensign in the United States Naval Reserve.
When he graduated, petitioner was required to serve six years
of military service in the Naval Reserve. At that time, the
Vietnam war was escalating and ships that had been placed in
storage were put back in service and recommissioned to
transport supplies to support the war effort. Under the Naval
Training and Service Agreement, newly commissioned Naval
Reserve officers, like petitioner, who were licensed by the
Coast Guard, were qualified to sail these vessels, the
majority of which were cargo ships owned by civilian
companies. Petitioner sailed these ships in the merchant
marine from June 1966 until April 1969. After that, he joined
a naval reserve unit and was honorably discharged in February
March 1980, petitioner began working as an engineer for the
New York Power Authority. In January 2001, he submitted an
application to respondent New York State and Local Retirement
System to purchase military service credit in order to
increase his pension benefits. Although his application was
initially denied, petitioner was subsequently advised that it
had been approved. In exchange for a nonrefundable payment of
$5, 088.10, petitioner was awarded 1.53 years of additional
service credit toward his pension benefits. In January 2003,
he retired and began receiving pension benefits that included
the previously approved military service credit.
October 2017, petitioner received a letter from the
Retirement System advising him that it had made an error in
granting him military service credit toward his pension
benefits. Specifically, he was informed that his service with
the merchant marine did not qualify as military duty under
Military Law § 243 and, consequently, military service
credit was not available to him. In addition, he was informed
that his pension benefits would be reduced, his payment of
$5, 088.10 would be refunded with interest and that he was
responsible for repaying the amount of the overpayment of
benefits that he had already received. Petitioner sought
administrative review and, following a hearing, a Hearing
Officer upheld the Retirement System's determination.
Thereafter, respondent Comptroller adopted the Hearing
Officer's decision, and petitioner commenced this CPLR
article 78 proceeding challenging it.
application to the Retirement System, a member "may
obtain a total not to exceed three years of service credit
for up to three years of military duty, as defined in
[Military Law § 243] if the member was honorably
discharged from the military" (Retirement and Social
Security Law § 1000 ). Military Law § 243 (1)
(b) provides, in relevant part, that military duty includes
"service in the merchant marine which shall consist of
service as an officer or member of the crew on or in
connection with a vessel... owned by, chartered to, or
operated by or for the account or use of the government of
the United States... and who served satisfactorily as a crew
member during the period of armed conflict, [December 17,
1941] to [August 15, 1945] aboard merchant vessels."
Clearly, petitioner's service in the merchant marine from
1966 to 1969 did not fall within the time parameters set
forth in the statute.
also failed to establish that his service aboard merchant
vessels constituted active military duty as a Naval Reserve
officer. This Court has recognized that only "active
duty, which excludes temporary and intermittent... service in
any reserve... force, shall be creditable" for purposes
of Retirement and Social Security Law § 1000 and
Military Law § 243 (1) (b) (Matter of McMorrow v
Hevesi, 6 A.D.3d 925, 927  [internal quotation
marks and citation omitted]). The record discloses that
petitioner was paid by the owners of the vessels on which he
sailed, not by the Navy. In addition, he never received any
order from the Navy directing him to sail on a particular
vessel or otherwise instructing him to report to specific
active duty while he was serving on these vessels. He stated
that he was not aware of any other naval officers serving on
these vessels and conceded that he did not qualify for
veteran's benefits as a result of his service.
Furthermore, the discharge papers given to him upon the
conclusion of his service were issued by the Coast Guard, not
the Navy, and did not reference his commissioned rank in the
Navy. Although there was evidence in the record that could
lead to a different result, because substantial evidence
supports the Comptroller's determination that petitioner
was not entitled to military credit under the governing
statutes, we will not disturb it (see id. at 927;
see also Matter of Canzoneri v Hevesi, 21 A.D.3d
639, 639-640 , lv denied 5 N.Y.3d 715');">5 N.Y.3d 715 ).
further contends that he was erroneously directed to repay
the pension benefits mistakenly paid to him. The Comptroller,
however, had no choice but to seek recoupment of such
benefits, as the Comptroller has a duty to correct errors in
order to ensure the integrity of the public retirement system
(see Retirement and Social Security Law § 111
[c]; Matter of Mowry v DiNapoli, 111 A.D.3d 1117,
1120 ). Notably, "[the Comptroller] is not
estopped from doing so because of errors committed by its
officials" (Matter of Ginocchio v New York State
Employees' Retirement Sys., 136 A.D.2d 789, 791
; see Matter of Grella v Hevesi, 38 A.D.3d
113, 117-118 ). We have considered petitioner's
remaining claims and find them to be unavailing.
P.J., Egan Jr. and Lynch, JJ., concur.
that the determination is confirmed, without costs, ...