IN RE: Barbara MARS (1999)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's application for retroactive membership in respondent New York State and Local Employees' Retirement System.

On August 2, 1974, petitioner began working as a teacher's aide for the Comsewogue Union Free School District and her employment in that position continued until an unspecified date in April 1977.   Petitioner returned to her employment with the school district in the position of account clerk on November 19, 1979.   In November 1994, petitioner applied for retroactive membership in respondent New York State and Local Employees' Retirement System seeking membership back to her initial employment date of August 2, 1974.   Petitioner's application was initially denied by the Retirement System on the basis that she did not qualify for retroactive membership status because she was allegedly receiving workers' compensation benefits “from April 2, 1977 to November 22, 1979” for a back injury she sustained while working for a private employer.   She then sought and obtained administrative review.   Following a hearing petitioner's application was denied, prompting her to commence this CPLR article 78 proceeding challenging the determination.

We confirm.   The record contains substantial evidence to support respondent Comptroller's determination that petitioner has not met the “continuous service” requirement for retroactive membership set forth in Retirement and Social Security Law § 803(b)(2) (see, Matter of Soronen v. Comptroller of State of N.Y., 248 A.D.2d 789, 669 N.Y.S.2d 694;  see also, Matter of Sadoff v. Ithaca City School Dist., 246 A.D.2d 861, 668 N.Y.S.2d 82, lv. denied 92 N.Y.2d 805, 677 N.Y.S.2d 781, 700 N.E.2d 320).   Specifically, the statute provides, in relevant part, that “a member shall be considered to have served continuously from the earliest date after which he or she shall have rendered at least twenty days of eligible service during each plan year of such public retirement system, excluding one break in service of not more than one plan year or not more than two plan years when such break in service is attributable to the birth of a child of the member or care for such child” (Retirement and Social Security Law § 803[b][2] ).   As applicable here, “a plan year begins on April first and ends on the next following March 31st” (2 NYCRR 359.5 [c] ).

In this case, petitioner does not attribute her break in service to child care but, rather, to disability caused by ruptured spinal discs.¹  Since the statute makes no allowance for a break in service due to periods of health-related disability, petitioner was required to demonstrate that her break in service did not extend beyond one plan year.   We find there is substantial evidence in the record to support the determination that petitioner did not work at least 20 days in two plan years.   Although petitioner alleges in her petition that her initial employment with the school district ceased when she was injured at the end of April 1977, at the hearing petitioner would only state in response to questioning as to the onset of her disability that she sustained an injury “in April of 1977”.   Contrary to petitioner's assertion, this statement is insufficient to establish that she worked at least 20 days in the April 1, 1977 to March 31, 1978 plan year.   Additionally, petitioner concedes that she did not work in the April 1, 1978 to March 31, 1979 plan year.   Therefore, we decline to disturb the Comptroller's determination that her break in service extended to two plan years.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

FOOTNOTES

1.   Respondents concede that the Comptroller made an erroneous finding of fact that petitioner was employed in the private sector from April 2, 1977 through November 22, 1979.   However, this error is irrelevant and does not relate to the Comptroller's conclusion as to petitioner's service in State employment.

GRAFFEO, J.

MIKOLL, J.P., CREW III, YESAWICH Jr. and PETERS, JJ., concur.