IN RE: Edward E. PLASBERG (1997)

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.

Petitioner was employed by respondent Town of Niskayuna in Schenectady County between May or June 1968 and August 1968 as a seasonable laborer.   Although he was eligible to become a member of respondent New York State and Local Employees' Retirement System, he did not join at that time.   In 1994, pursuant to Retirement and Social Security Law § 803, petitioner requested retroactive membership in the Retirement System.   Petitioner commenced this proceeding challenging respondent Comptroller's determination denying his request.   Although petitioner's testimony that he was not advised in 1968 that he was eligible to join the Retirement System satisfied his burden of going forward (see, Matter of Scanlan v. Buffalo Pub. School Sys., 90 N.Y.2d 662, 677-678, 665 N.Y.S.2d 51, 687 N.E.2d 1334;  see also, Retirement and Social Security Law § 803[b][3] ), the employer, who averred that petitioner was orally advised of his option to join, provided a rational basis for denying retroactive membership.   Specifically, testimony at a hearing revealed that other employees hired at approximately the same time as petitioner and who worked in similar positions were informed of their option to join the Retirement System (see, Matter of Scanlan v. Buffalo Pub. School Sys., supra, at 678-681, 665 N.Y.S.2d 51, 687 N.E.2d at 1334).   As such, we confirm the Comptroller's determination.

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

MEMORANDUM DECISION.