Citation Numbers: 50 Misc. 2d 1048
Judges: Dudley
Filed Date: 6/25/1966
Status: Precedential
Modified Date: 2/5/2022
In this article 78 proceeding petitioner seeks an order (1) directing the respondent Teachers’ Retirement Board to retire her for disability with full retirement service credit for the entire period of her military service from January 16, 1943 to August 19, 1963, plus 200 additional days of credit for accumulated sick leave; and (2) requiring the City of New York to pay into the Teachers’ Retirement System on her behalf contributions which she would have been required to pay into the system based upon the salary she would have received with the Board of Education for those periods of her military service when her salary was lower than the salary she would have received in her teaching position during the same period. As of September 1, 1950 she seeks to have her salary fixed as though she had been reappointed as teacher of swimming on that date.
Petitioner, then a teacher, became a member of the Teachers’ Retirement System as of September 6, 1940. On August 31, 1941 the position of teacher of swimming which she occupied was abolished by the Board of Education, which, at about the same time, established a preferred eligible list of all those whose positions as swimming teachers had been abolished. Thereafter,
Petitioner is deemed to have a leave of absence from January 16, 1943-August 19, 1963 pursuant to subdivision 2 of section 243 of the Military Law. She has agreed to contribute to the retirement system the amount which is determined to be owing by her. Therefore she is entitled to the 20 years of military service as service credit under subdivision 4 of section 243 of the Military Law notwithstanding paragraph (b) of subdivision 1 of section 243, which only applies to those entering military service on or after January 1, 1947 and before June 25, 1950. (Matter of Brown v. Kennedy, 14 Misc 2d 405, 406.)
Petitioner’s entitlement to the benefits of these provisions of the Military Law, clear on the face of the statute, may not be withheld on the basis urged by respondent — that petitioner never intended to return to service with respondent, and that the statute was not intended to cover, in substance, “ career ” military personnel. While this may well be the case, the statute’s terms are clear, and upholding respondent’s argument on this point would mandate questioning the intention of each person seeking to avail himself of the benefits of the law.
Petitioner contends that as of June 29, 1950 (the date of reinstatement of instructors in showers to teachers of swimming) she was entitled to the status of teacher of swimming
Petitioner is entitled to the 200 days’ accumulated sick leave under section 106(3) of the by-laws of the Board of Education.
Under subdivision 20 of section 243 of the Military Law the City of New York is required to pay petitioner’s contributions to the retirement system so long as her military salary was lower than the salary she would have received as a teacher for the same period. She is deemed to have the position of instructor in showers from January 16, 1943-August 19, 1963 and she was only eligible for the position of teacher of swimming as of June 29, 1950. Her salary as of January 16, 1943 should be computed on the basis of an instructor in showers and the City of New York must contribute to the retirement system on this basis. Also, as of the date of her reinstatement on October 25, 1963 she became entitled to her 200 days’ accumulated sick leave (with pay) and retirement service credit until the date of her disability retirement by the Board of Education (June 25, 1964). It is conceded by both parties that she will not get any retirement service credit or sick leave pay subsequent to her retirement on June 25, 1964. She is also entitled to retirement credit from August 19,1963, the date of her release from military service, to the date of her reinstatement on October 25, 1963 under paragraph (b) of subdivision 1 of section 243 of the Military Law, since the period is less than 90 days. Accordingly and pursuant to the above, the petition is granted in part and denied in part.