Matter of McKenna v DiNapoli

Matter of McKenna v DiNapoli 2015 NY Slip Op 01217 Decided on February 11, 2015 Appellate Division, Third Department 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 Official Reports.

Decided and Entered: February 11, 2015
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[*1]In the Matter of PATRICK M. McKENNA, Petitioner,

v

THOMAS P. DiNAPOLI, as Comptroller of the State of New York, et al., Respondents.

Calendar Date: January 13, 2015
Before: Peters, P.J., Rose, Egan Jr. and Clark, JJ.

Patrick M. McKenna, Malverne, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.

Clark, J.

MEMORANDUM AND JUDGMENT

Proceeding 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 which denied petitioner's application to restore retirement service credits.

Petitioner, an attorney, provided legal services to the Nassau County Bridge Authority on a part-time basis beginning in 1999. Respondent Comptroller determined that petitioner had provided those services as an independent contractor, rather than an employee, and was not entitled to service credit in respondent New York State and Local Retirement System. Petitioner then commenced this CPLR article 78 proceeding and respondents now

concede that the determination was not supported by substantial evidence. We agree (see e.g. Matter of Brothman v DiNapoli, 114 AD3d 1072, 1073-1074 [2014]; Matter of Mowry v DiNapoli, 111 AD3d 1117, 1118-1120 [2013]) and, accordingly, annul.

Peters, P.J., Rose and Egan Jr., JJ., concur.

ADJUDGED that the determination is annulled, without costs, petition granted and [*2]matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision.