Matter of Giordano v New York State Teachers' Retirement Sys.

[*1] Matter of Giordano v New York State Teachers' Retirement Sys. 2009 NY Slip Op 51910(U) [24 Misc 3d 1247(A)] Decided on September 2, 2009 Supreme Court, Albany County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 2, 2009
Supreme Court, Albany County

In the Matter of the Application of Matthew Giordano, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

New York State Teachers' Retirement System and NEW YORK STATE TEACHER'S RETIREMENT SYSTEM RETIREMENT BOARD, Respondents.



5364-09



Brad A. Stuhler, Esq.

Attorneys For Petitioner

490 Wheeler Road

Suite 280

Hauppauge, New York 11788

Andrew M. Cuomo

Attorney General of the State of New York

Attorneys For Respondents

Dean J. Higgins, Esq., of counsel The Capitol

Albany, New York 12224-0341

Henry F. Zwack, J.

In this CPLR Article 78 proceeding, petitioner seeks to reverse a determination of respondents which refused to change petitioners' tier status with in the retirement system. Respondents oppose the petition.

The parties do not dispute that petitioner was employed as a full-time teaching assistant in the South Manor Union Free School District from January 1, 1971 through June 30, 1971. On September 1, 1971, petitioner began working as a full-time teacher in the Hauppauge Union Free School District and he is currently employed in the District as an Elementary Principal.

In 2005, petitioner sought a tier change and service credit in the retirement system based upon his employment as a teaching assistant for the first six (6) months of 1971. In 2006, petitioner was informed that his service would be credited but that his tier would not change until there was proof of petitioner's mandatory membership in the retirement system as of that date. After additional correspondence, respondent issued a determination on March 2, 2009 which denied petitioner's request to backdate his retirement system membership to January of 1971.

Petitioner argues that he held a full-time teaching assistant position from January 1 to June 30, 1971 and that his full-time employment has been clearly established. Among other documents, he submits board minutes of the school district which do not specifically reference petitioner's name but note that an assistant teacher was hired on a page entitled "title I preliminary budget." The preliminary budget page references "Assistant Teacher Jan - June" with an apparent reference to salary in the amount of $4320 and the following additional references: "+ ret. 864.00; + S.S. 211.68" which then arrive at the total of $5395.68. Petitioner also supplies an October 6, 2006 letter from the Superintendent of Schools for the Eastport/South Manor Central School District which states that payroll records indicate petitioner was "employed as a full-time Teaching Assistant for 120 days in 1971 and earned a total salary of $4320, with an assigned New York State Teachers' Retirement System number of 474636. Petitioner notes that this is his present number in the retirement system.

Respondents argue that despite petitioner's full-time employment during the time period in question, there is no proof that the position in which he worked was one in which membership in the retirement system was mandatory. Absent such proof, petitioner was required to prove that he joined the retirement system. Respondents argue that petitioner has failed to submit sufficient evidence to establish that he is entitled to a [*2]change in tier status. Respondents affirm that petitioner submitted an application for membership in the retirement system which was received on September 30, 1971, at which point petitioner was assigned to the membership number of 474636. Respondents argue that the nature of petitioner's employment in the first half of 1971 has not been established to be employment on a permanent/per annum basis. Respondents argue that the documents submitted by petitioner established only that he was hired for a six-month period and do not establish that he was employed on a permanent/per annum basis. They note that to the extent petitioner appears to believe that full-time employment equates with permanent or per annum employment, this is in error.

The Court concurs with respondents that there is insufficient proof submitted by petitioner to warrant a finding that respondents acted in an arbitrary and capricious manner or without a rational basis. First, the Court notes that even the documents submitted by petitioner support a finding that he was employed for a six-month set term at the beginning of 1971, which was intended to run from January through June 1971 only. Based on the documents submitted by petitioner, it does not appear that this position was ever intended to be a permanent or per annum position. Second, despite the reference in a 2006 letter by the Superintendent of Schools that petitioner was assigned his retirement system number in conjunction with his teaching assistant employment in early 1971, there is no proof to support this conclusion. In fact, respondents submit petitioner's retirement system membership application which was received by the retirement system on September 30, 1971 and which notes petitioner's assigned member number 474636, which is his present retirement system number. The Court concurs with respondents and does not find that the preliminary budget sheet submitted by petitioner establishes that payments to the retirement system were made on behalf of petitioner. Lastly, respondents have submitted clear legal authority which makes clear that full-time employment alone is not sufficient to warrant a change in tier status in the retirement system (21 NYCRR §5000.1). Based upon the foregoing, the Court does not find that respondents have acted in an arbitrary and capricious or irrational manner or otherwise acted contrary to law (Walroth v New York State and Local Employees' Retirement System, 14 AD3d 918 [3rd Dept 2005]).

Accordingly, it is

ORDERED, the petition is dismissed.

This constitutes the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is returned to the attorneys for the respondents. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to [*3]filing, entry and Notice of Entry.

Dated:September, 2009

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice