Matter of Ivan v New York City Dept. of Health & Mental Hygiene

Matter of Ivan v New York City Dept. of Health & Mental Hygiene 2009 NY Slip Op 05189 [63 AD3d 572] June 23, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

In the Matter of Richard Ivan et al., Appellants,
v
New York City Department of Health and Mental Hygiene et al., Respondents.

—[*1] Schwartz, Lichten & Bright, P.C., New York (Stuart Lichten of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered February 3, 2009, which denied petitioners' application pursuant to CPLR article 78 seeking, inter alia, to compel respondent Department of Health and Mental Hygiene (DHMH) to take the necessary actions to provide petitioners with benefits of membership in the New York City Employees' Retirement System (NYCERS), and dismissed the petition, unanimously affirmed, without costs.

The determination that petitioners are not entitled to retirement credit with NYCERS by reason of having worked for private corporations under contract with DHMH but paid with funds provided by the State is not arbitrary and capricious (see Matter of Eastman v Department of Citywide Admin. Servs., 266 AD2d 53 [1999], citing definition of "city-service" in Administrative Code of City of NY § 13-101 [3] [a] as service "paid for by the city"). Concur—Tom, J.P., Friedman, Catterson, Moskowitz and Richter, JJ. [See 2009 NY Slip Op 30120(U).]