Elsasser 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 the Comptroller which denied petitioner’s application for ordinary disability retirement benefits. Petitioner, a 20-year mail room supervisor and print shop foreman employed by the Middle Country School District No. 11 in Centereach, Suffolk County, sustained an injury in July, 1980 which prevented him from returning to work. On November 21,1980, he wrote to his superior to “request effective this date disability retirement”. The school board accepted his request for retirement at a meeting on December 15, 1980 and notified him thereof on December 22. Petitioner’s application for ordinary disability retirement dated January 12, 1981 was rejected by the Comptroller after a hearing on the ground that petitioner’s employment had terminated November 21,1980 and that section 62 of the Retirement and Social Security Law requires that a member must actually be in service at the time of filing an application. This statute reads in pertinent part: “§ 62. Ordinary disability retirement * * * aa. At the time of the filing of an application pursuant to this section, the member must: 1. Have at least ten years of total service credit, and 2. Actually be in service upon which his membership is based”. The plain language of the statute leaves no room for interpretation (see Matter of Wilson v Levitt, 79 AD2d 742). The words “actually [be] in service” mean either on unpaid medical leave (Memorandum of State Employees Retirement System, NY Legis Ann, 1956, p 72; see Matter ofO’Marah v Levitt, 35 NY2d 593; see, also, 2 NYCRR 309.4) or working, and 876 on the payroll (Matter of O’Neil v Regan, 78 AD2d 478, 479, mot for lv to app den 54 NY2d 602; see Matter of Murphy v Regan, 85 AD2d 819, app dsmd 56 NY2d 644, mot for lv to app den 56 NY2d 508). Although he could have sought medical leave or remained on the payroll until his accrued vacation days had been utilized, petitioner chose to resign effective November 21, 1980 and accept checks for all accrued days thereafter. On this record, we can neither say that the Comptroller’s determination was not supported by substantial evidence nor otherwise erroneous, arbitrary or capricious. Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Weiss and Levine, JJ., concur.