Kulikowsky v. Levitt

Kane and Mikoll, JJ., dissent and vote to annul in the following memorandum by Kane, J. Kane, J. (dissenting). We respectfully dissent and would [737] annul the Comptroller’s determination upon the ground that it is not supported by substantial evidence. Section 341 (subd i, par 1, cl [b]) of the Retirement and Social Security Law states that the time during which a member of the State Policemen’s and Firemen’s Retirement System is absent on leave without pay "May be included in computing member service and final average salary only if the head of the department in which such member is employed and the comptroller allow such time for retirement purposes at the time such leave of absence is granted.” Since it is undisputed that no formal procedures existed for obtaining the Comptroller’s approval, and since the statute does not require that his permission be secured in writing, the absence of written documentation would be significant only if it were established that requests for such approvals were routinely preserved in some fashion. The present record fails to contain any proof of that nature and the evidence viewed as a whole is entirely consistent with petitioner’s assertion that the Comptroller was aware of his educational leave and approved it for retirement purposes. The exhibits introduced at the hearing did not indicate any disapproval by the Comptroller and the balance of the evidence was in the form of testimony by the petitioner and his troop commander during 1956. The troop commander related that applications for educational leave were forwarded to the Superintendent of the Division of State Police. If approved at that level, they would then be sent to the Comptroller for his action. Although the witness lacked specific knowledge of the Comptroller’s decision on petitioner’s application, he assumed that such approval had also been given since he had never heard of any situation in which it had been withheld. Moreover, as the majority notes, in 1958 a representative of the Comptroller computed and authorized the pay deductions necessary for petitioner to "buy back” retirement credit upon his return from the educational leave. Finally, when discussing his plans with another representative of the Comptroller in 1974, petitioner was told that he was "all clear” and was sent a letter reflecting credit of the educational leave for retirement purposes. No evidence, direct or circumstantial, was offered on behalf of the Comptroller to rebut the foregoing proof. Consequently, the ultimate finding that the Comptroller had never been notified of petitioner’s application and, therefore, had never approved it, is founded solely on petitioner’s inability to present direct evidence of such notice and approval. That single factor does not rise to-the level needed to support an administrative determination, particularly in light of the affirmative proof that was elicited, because it is not " 'so substantial that from it an inference of the existence of the fact found may be drawn reasonably’ ” (300 Gramatan Ave. Assoc, v State Div. of Human Rights, 45 NY2d 176, 179, quoting from Matter of Stork Rest, v Boland, 282 NY 256, 273). Accordingly, the Comptroller’s determination should be annulled.