Matter of Biscardi v. New York State and Local Retirement System , 30 N.Y.S.3d 409 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 28, 2016 521717
________________________________
In the Matter of VALERIE J.
BISCARDI,
Petitioner,
v MEMORANDUM AND JUDGMENT
NEW YORK STATE AND LOCAL
RETIREMENT SYSTEM et al.,
Respondents.
________________________________
Calendar Date: March 23, 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.
__________
Rose, J.
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,
-2- 521717
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 AD2d 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