Erwin v. Regan

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of respondent State Comptroller which denied petitioner’s application to the State Employees’ Retirement System for member service credit. Having served three years as Livingston County Surrogate, Family Court and County Court Judge 754 and then 14 years as a Supreme Court Justice, petitioner retired in December of 1979 and thereupon filed with the State Employees’ Retirement System a “supplemental statement of services” seeking member service credit for the period from August of 1952 to February of 1962 during which time he allegedly served as Town Attorney for the Town of Geneseo. When the Retirement System later denied his application on the ground that petitioner was neither an officer nor an employee of the town during the period at issue, petitioner requested and was granted a hearing on the matter before respondent State Comptroller. At the hearing, petitioner effectively abandoned his claim for credit for the years 1952 through 1954 by requesting a determination only with respect to the years 1955 through 1962. Based upon findings that the town’s annual lump-sum disbursements to petitioner were made specifically for services actually rendered and that no payroll deductions for taxes were withheld therefrom, respondent ultimately ruled that petitioner was an independent contractor during the time in question. Accordingly, his application for member service credit was denied, and the instant article 78 proceeding was commenced and transferred to this court. The challenged determination should be confirmed. Upon the present record it appears that the town never formally established the office of town attorney under section 20 (subd 2, par [a]) of the Town Law, but rather employed petitioner pursuant to section 20 (subd 2, par [b]) of the Town Law and paid him varying amounts of money for legal services actually rendered while concededly making no deductions of any kind irom his compensation. Given these circumstances, even conceding that contrary evidence was also presented suggesting that petitioner may have been an employee of the town, we can only conclude that substantial evidence supports respondent’s determination that petitioner was an independent contractor. Such being the case, the determination should not be disturbed (see, e.g., Matter of Ma$o v Regan, 81 AD2d 734). Determination confirmed, and petition dismissed, without costs. Main, J. P., Yesawich, Jr., and Levine, JJ., concur. Mikoll and Weiss, JJ., dissent and vote to annul in the following memorandum by Mikoll, J.