IN RE: VALERIE J. BISCARDI

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: VALERIE J. BISCARDI, Petitioner, v. NEW YORK STATE AND LOCAL RETIREMENT SYSTEM et al., Respondents.

521717

Decided: April 28, 2016

Before:  Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ. Valerie J. Biscardi, Brookhaven, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.

MEMORANDUM AND JUDGMENT

Calendar Date:  March 23, 2016

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 denying petitioner's application for disability retirement benefits.

Petitioner initially applied for disability retirement benefits pursuant to Retirement and Social Security Law article 15 in February 2012.  She withdrew that application in March 2012 and thereafter elected to take service retirement in September 2012.  In May 2013, petitioner's counsel inquired and was informed by respondent New York State and Local Retirement System that there was no record that petitioner had filed a subsequent application for disability retirement benefits on September 19, 2012, as he contended.  Following a hearing, the Hearing Officer determined that petitioner had not established that she had filed a timely application pursuant to Retirement and Social Security Law § 605.  Respondent Comptroller adopted this determination, prompting this CPLR article 78 proceeding.

We confirm.  An application for disability retirement benefits must be filed, as relevant here, “within three months from the last date the member was being paid on the payroll” (Retirement and Social Security Law § 605[b][2] ).  Kathleen Nowak, Director of Disability Services for the Retirement System, testified that a search of the Retirement System's records revealed petitioner's February 2012 disability retirement application and the March 2012 withdrawal letter, but no subsequent disability retirement benefits application.  Although petitioner argues that her counsel timely mailed a second application to the Retirement System in September 2012, “simply mailing an application does not constitute filing;  rather, filing only occurs upon actual delivery to and receipt by [the Retirement System]” (Matter of Jarek v. McCall, 268 A.D.2d 654, 655 [2000];  see Matter of O'Brien v. DiNapoli, 116 AD3d 1124, 1125 [2014] ).  In light of the foregoing, substantial evidence supports the Comptroller's determination that petitioner failed to file a timely application and it will not be disturbed.  Petitioner's remaining contentions have been reviewed and found to be without merit.

Peters, P.J., Lahtinen, Lynch and Aarons, JJ., concur.

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

ENTER:

Robert D. Mayberger

Clerk of the Court