Gajevska v. Teachers' Retirement System , 975 N.Y.S.2d 669 ( 2013 )

Order, Supreme Court, New York County (Paul Wooten, J.), entered May 1, 2012, which, inter alia, denied the petition seeking a judgment that petitioner was entitled to either a determination of her rights as contingent beneficiary under the qualified pension plan (QPP) of Steven J. Brown (decedent), that she was entitled to the payment of benefits as contingent beneficiary under the QPP of decedent, or directing respondent to pay petitioner benefits as a contingent beneficiary of the QPP of decedent, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs. Order, Supreme Court, New York County (Paul Wooten, J.), entered April 23, 2012, which granted defendants’ motions to dismiss the complaint seeking a declaratory judgment that, inter alia, plaintiff was entitled to the subject retirement benefits, unanimously affirmed, without costs.

The parties agree that the four-month statute of limitations controls this action, which challenges an agency determination. The court properly determined that petitioner/plaintiff was provided with notice by respondent on September 18, 2009 that she would not receive the member’s retirement benefits as a contingent beneficiary because he died prior to his retirement date, and that the designated in-service beneficiary was entitled to the benefits. The court properly found that petitioner failed to file a proceeding to challenge that determination within the requisite four-month period (CPLR 217 [1]). Concur — Andrias, J.P, Acosta, Moskowitz, Richter and Manzanet-Daniels, JJ.