Matter of Gilles v DiNapoli

Matter of Gilles v DiNapoli 2015 NY Slip Op 09342 Decided on December 17, 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: December 17, 2015
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[*1]In the Matter of PETER GILLES, Petitioner,

v

THOMAS P. DiNAPOLI, as State Comptroller, et al., Respondents.

Calendar Date: October 20, 2015
Before: Peters, P.J., Lahtinen, Garry and Clark, JJ.

Thomas J. Troetti, White Plains, for petitioner.

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

Lahtinen, 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 denying petitioner's application for recalculation of his final average salary.

Petitioner, a member of the Town of Greenburgh Police Department, received overtime pay for occasionally volunteering to work special-duty details, which involved police services provided to private entities that paid the Town for such services. After his retirement, the New York State and Local Retirement System notified petitioner that pay for such special-duty details would not be included in his final average salary, and a Hearing Officer came to the same conclusion following a

hearing. Respondent Comptroller ultimately upheld that determination stating, in part, that petitioner had "failed to sustain his burden of proving that he [was] eligible to have included in the calculation of his final average salary those payments received for services rendered to private entities and for which the employer [was] reimbursed by the private entities." Petitioner commenced this CPLR article 78 proceeding challenging the Comptroller's determination. The relevant issues are the same as in our recently decided case of Matter of Tamucci v DiNapoli (133 AD3d 960 [2015]), and, for the reasons set forth therein, we confirm.

Peters, P.J., Garry and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.