Brei v. Regan

Determination unanimously confirmed, without costs, and petition dismissed. Memorandum: [1061] Petitioners, the former husband and the estate of Eloise C. Brei, seek review of respondent’s denial of their application to the New York State Employees’ Retirement System to purchase retirement credits for prior service on behalf of decedent. Their primary contention is that the determination, reached after a hearing, is not based on substantial evidence. It is undisputed that during her lifetime decedent did not perform the prerequisites to obtaining such credits; she did not file with the Comptroller an application therefor (see Retirement and Social Security Law, § 74); nor did she authorize allocation of or otherwise provide funds for their purchase. There is no statutory authority for a member’s estate to perform these acts on the member’s behalf; therefore, respondent lacked authority to grant petitioners’ application (cf. Matter of Morrissey v New York State Employees’ Retirement System, 298 NY 442, 449-450; Lade v Parker, 65 Misc 2d 369, mod on other grounds 33 AD2d 956). Respondent’s denial of petitioners’ application is supported by substantial evidence (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176). There is no basis for the claim that respondent’s determination was arbitrary, capricious, or an abuse of discretion. (Art 78 proceeding transferred by order of Supreme Court, Erie County, Wolf, J.) Present — Simons, J. P., Hancock, Jr., Doerr, Moule and Schnepp, JJ.