Matter of Joseph Canzoneri v Alan G. Hevesi

Matter of Canzoneri v Hevesi 2005 NY Slip Op 06271 [21 AD3d 639] August 4, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 12, 2005

In the Matter of Joseph Canzoneri, Petitioner, v Alan G. Hevesi, as Comptroller of the State of New York, Respondent.

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Lahtinen, J. 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 which denied petitioner's application for military service credit in the calculation of his retirement benefits.

Petitioner applied to the New York State and Local Employees' Retirement System for military service credit for time spent as a cadet at the United States Coast Guard Academy during the Korean War (see Retirement and Social Security Law § 1000 [1]).[FN*] The Retirement System initially denied petitioner's application concluding that he was not on "actual active duty." Petitioner requested a hearing, after which the Hearing Officer determined that petitioner's time at the Coast Guard Academy constituted military duty as defined by Military Law § 243 (1) (b), thereby entitling him to military service credit from July 7, 1952—the date he entered the Coast [*2]Guard Academy—until January 31, 1955—the end of the Korean War. Respondent rejected the Hearing Officer's determination, finding that petitioner's period of active military service commenced with his commission as an ensign on June 1, 1956. This CPLR article 78 proceeding ensued.

Notwithstanding petitioner's evidence indicating that his time spent at the Coast Guard Academy has been deemed to be active service, there is substantial evidence in the record to support respondent's determination that petitioner's military duty for purposes of service credit under the statute commenced on June 1, 1956 (cf. Crawford v Department of Transp., 373 F3d 1155 [2004]). We find nothing "irrational, unreasonable or inconsistent" (Matter of Whitehill v New York State Teachers' Retirement Sys., 142 AD2d 902, 904 [1988], affd 73 NY2d 944 [1989]) about respondent's determination that petitioner's time as a cadet does not qualify for service credit under the statute and we therefore refuse to disturb it (see Matter of McMorrow v Hevesi, 6 AD3d 925, 926-927 [2004]).

Mercure, J.P., Carpinello, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. Footnotes

Footnote *: Retirement and Social Security Law § 1000 (1) provides service credit for up to three years of military duty for honorably discharged Korean War veterans who rendered military service from June 27, 1950 until January 31, 1955.