Tomasino v. New York State Employees' Retirement System

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at [676] Special Term, entered in Albany County) to review a determination of respondent denying petitioner’s application to, inter alia, annul the option one-half retirement option established for the decedent. Decedent, petitioner’s estranged husband, was employed as a security officer by the State of New York for about 22 years and was granted ordinary disability retirement effective July 21, 1977. By letters dated July 19, 1977 and August 11, 1977, the Comptroller advised decedent of his options under section 90 of the Retirement and Social Security Law and alerted him to the fact that August 19,1977 was the selection deadline. Decedent failed to make any such selection and never designated a beneficiary so that with the passage of the deadline he was retired under option one-half by operation of law (Retirement and Social Security Law, § 90, subd bb, par 2). Decedent passed away on December 28, 1977 and on March 23, 1978 petitioner applied to the retirement system seeking an annulment of the option one-half and replacement or^ substitution therefor by option one with herself designated as the beneficiary.* Following a hearing, the application was denied and this article 78 proceeding was commenced. The Comptroller has exclusive authority to act upon all applications for any form of retirement (Retirement and Social Security Law, § 74, subd b; Matter of Moore v Levitt, 74 AD2d 971) and his determinations, when rational and supported by substantial evidence, must be upheld (Matter of Nutt v New York State Employees’ Retirement System, 72 AD2d 898, 900). At bar, it is conceded that decedent took no action with the result that option one-half was invoked by operation of law (Retirement and Social Security Law, § 90, subd bb, par 2). In addition, petitioner neglected to make any election on his behalf though provided with the right to do so (Retirement and Social Security Law, § 90, subd a) and did not file her application until approximately eight months after the effective date of decedent’s retirement. These facts being conceded, it can hardly be argued that the Comptroller’s decision was arbitrary and capricious or lacked a rational basis (Matter of Pentinen v New York State Employees’ Retirement System, 60 AD2d-366, mot for lv to app den 44 NY2d 647). While it is true, as petitioner urges, that affirmative acts of an incompetent may be voided under certain circumstances (Ortelere v Teachers’ Retirement Bd. of City of N. Y., 25 NY2d 196), we perceive no such compelling circumstances to be present here. In Ortelere (supra), consideration was given to the clearly established fact that Mr. and Mrs. Ortelere were interdependent and deeply devoted each to the other and real partners in an ideal marriage of many years. The Court of Appeals found, in the light of this relationship, that her decision to change the option was so unwise and foolhardy that a fact finder might conclude that it was explainable only as a product of psychosis (Ortelere v Teachers’ Retirement Bd. of City of N. Y. supra, p 206). Unfortunately, the instant petitioner’s marriage with decedent bore little resemblance to an ideal union and, as petitioner related, they had come to realize several years before her husband’s death that they could not live together and had in fact lived separate and apart and independent of each other. In view of this and the absence of convincing or any evidence that the incompetent (assuming deceased was so proven to be) would have made a different selection, “it is presumed that he would have chosen the option yielding the largest returns in his lifetime” (Schwartzberg v Teachers’ Retirement Bd. of City of N. Y., 273 App Div 240, 242-243, affd 298 NY 741). Decedent here may have been well aware that his inaction in the selection of an option would provide him by operation of law with the largest return during his lifetime and that this was the better course to follow in view of his independence following his broken [677] marriage. We find dispositive this court’s decision in McCarthy v Levitt (59 AD2d 952, 953, mot for lv to app den 43 NY2d 647) wherein we stated: “While Ortelere v Teachers’ Retirement Bd. of City of N. Y. (25 NY2d 196) holds that the affirmative acts of an incompetent may be voided under certain circumstances, it would be a dangerous precedent to grant benefits to an incompetent who failed to act, and to allow a beneficiary who.also failed to take action to thereby gain by that inaction.” Accordingly, the determination should be confirmed. Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Main and Yesawich, Jr., JJ., concur. Mikoll and Weiss, JJ., dissent in the following memorandum by Weiss, J. Footnotes [*] Option one-half provides the retiree with maximum lifetime benefits and a modest death benefit while option one provides a modest lifetime benefit for the retiree and a more generous death benefit.