By order to show cause and verified petition filed with the Kings County Clerk's office (KCC) on March 9, 2006, petitioner Richard Bahr moves pursuant to Article 78 of the CPLR, to set aside the determination by respondents to terminate petitioner's retirement health insurance benefits; and to increase the vesting requirement for retiree from five years to ten years. Petitioner also seeks an order reinstating his retirement health insurance benefits retroactive to their discontinuance, and any other relief that may be just and proper.

Respondents Metropolitan Transit Authority (hereinafter MTA) and New York City Employees' Retirement System (hereinafter NYCERS) cross move to dismiss the petition. Respondent New York State Department of Civil Service (hereinafter NYSDCS) opposes the petition. Petitioner opposes the cross motions to dismiss.

On March 10, 2006, petitioner commenced this action by order to show cause and verified petition. Pursuant to CPLR §7804(f), respondents MTA, New York City Transit Authority (hereinafter NYCT) and New York City Employee's Retirement System (hereinafter NYCERS) cross move to dismiss the petition as untimely pursuant to CPLR §217(1). Respondent MTA also seeks dismissal on the basis that it has been improperly joined as a party. NYCERS also seeks dismissal pursuant to CPLR §3211 based on the failure to state a cause of action as against them.

Respondents New York City Health Insurance Program (hereinafter NYSHIP) and the employee benefits division of NYSDCS, oppose the petition on the grounds that their act terminating petitioner's health coverage was merely a ministerial act and that the decision to [*2]terminate was decided solely by NYCT, the petitioner's participating employer.

Petitioner's papers include a verified petition by petitioner's counsel, an affidavit from

petitioner and eighteen exhibits. Exhibit 1 is a letter dated October 27, 1998 from NYCT to its employees outlining new legislation governing years of service for vesting purposes. Exhibit 2 is a summary of health insurance benefits for new retirees. Exhibit 3 is a letter dated April 5, 2004 from Michael Weir of NYCERS to petitioner stating petitioner's years of service and offering him the opportunity to purchase prior service credit in order to reach the five-year vesting requirement. Exhibit 4 is a letter dated March 14, 2002, from the New York State Department of Civil Service, Employee Benefits Division advising petitioner that he is eligible to continue to receive health insurance coverage under the NYSHIP program paid by the participating employer. Exhibit 5 is a letter from NYCERS to petitioner acknowledging the receipt of a check to buy prior service credit. Exhibit 6 is petitioner's application for service retirement. Exhibit 7 is a letter, dated April 15, 2004 from NYCERS to petitioner acknowledging petitioner's desire to buy additional service. Exhibit 8 is a letter dated July 23, 2004 from New York City Transit to petitioner informing petitioner that he did not have the (10) ten years of credited service in the pension plan to be eligible for health insurance and that his health coverage would be terminated on August 1, 2004. Exhibit 9 is a letter from New York State Department of Civil Service, Employee Benefits Division, dated August 2, 2004, informing petitioner to ask his former employer for information regarding his premium cost. Exhibit 10, is a letter from New York City Transit, dated August 24, 2004 further informing petitioner that although he had the requisite five years of service for pension payments, he needed ten years for health coverage. Exhibit 11 is a letter and documents from New York City Transit, dated January 14, 2005 responding to petitioner's Freedom of Information Act request. Exhibit 12 is petitioner's cobra application information. Exhibit 13 is a letter, dated July 29, 2004 from petitioner to New York City Transit. Exhibit 14 is a letter, dated July 27, 2005 from petitioner to NYCERS. Exhibit 15 is a letter, dated August 5, 2005 from NYCERS to petitioner denying petitioner's request to buy back more service. Exhibit 16 is a letter, dated August 25, 2005 from petitioner to NYCERS asking NYCERS to reconsider their decision denying the petitioner the ability to buy back more service. Exhibit 17 is a letter dated October 7, 2005 from petitioner to New York City Transit. Exhibit 18 is a letter dated October 21, 2005 from New York City Transit indicating that they will not communicate with petitioner as he is represented by counsel.

Cross Motion of NYCERS

NYCERS cross motion consists of their attorney's affirmation, one exhibit and a

memorandum of law. Exhibit A is a letter dated September 23, 2005, from NYCERS to petitioner denying petitioner the ability to purchase additional service.

MTA and NYCT's cross motion consists of their attorney's affirmation, seven exhibits, and a memorandum of law. Exhibit 1 is NYCTA's salary and status notification. Exhibit 2 is NYCT's personnel action request. Exhibit 3 is a July 8, 1999 statement of the rules for eligibility for retiree medical benefits. Exhibit 4 is a NYCT computer generated resignation status of petitioner, dated December 10, 2004. Exhibit 5 is the July 23, 2004 termination of medical coverage letter from NYCT to petitioner. Exhibit 6 is petitioner's July 29, 2004 reconsideration letter from petitioner to NYCT . Exhibit 7 is NYCT's August 24, 2004 letter response to petitioner's July 29, 2004 letter.

NYSDCS's opposition to the petition consists of the affirmation of their attorney and three exhibits. Exhibit A is their letter to petitioner dated March 14, 2002 indicating that petitioner's health coverage was covered by the participating employer. Exhibit B is their letter to petitioner dated August 2, 2004. Exhibit C is a letter from Employee Benefits Division to NYCT, dated August 24, 1998, indicating that there was no legislation changing the eligibility requirements for health insurance coverage from ten years to five years.

From August 16, 1989 until August 11, 2000, Bahr was an employee of NYCT. NYCT is a public benefit corporation duly organized pursuant to New York Public Authorities Law, §1204. MTA is a separate public benefit corporation duly organized pursuant to the Public Authorities Law, §1260. Petitioner was employed by NYCT not the MTA.

On October 27, 1998, NYCT announced recent New York legislation amending the pension laws applicable to NYCERS that lowered the Tier 4 retirement and vesting requirements from ten years of credited service to five years. NYCERS is an entity separate and distinct from the NYCT. NYCERS has the powers and privileges of a corporation and transacts all of its business by its own name. Employees of the NYCT apply to NYCERS for membership.

Petitioner claims that he relied on information from NYCT that an employee was eligible for vesting if he had five years of credited service and was within five years of normal retirement age. He further claims he relied on information from NYCT that vesting for pension benefits included health insurance coverage and that he would be eligible for all retirement benefits so long as he bought back whatever time was left between his actual employment period at NYCT and the five year retirement vesting requirement.

Petitioner became a member of NYCERS on October 5, 1995, retroactive to February 15, 1990 and resigned on August 11, 2000. He was credited with 4.85 years of service. On August 12, 2000, petitioner began new employment. From that date, petitioner continued to receive his health insurance benefits, including dental and vision and prescription benefits.

At the time of petitioner's resignation, the NYCT provided managerial employees, like petitioner, with health insurance coverage through the New York State Health Insurance Program (NYSHIP). NYSHIP is part of the New York State Department of Civil Service.

NYCT provides NYSHIP health insurance coverage after retirement if the person who retired under Tier 4 had at least ten years of service in NYCERS and was 62 years old or had five years of service in NYCERS and was 70 years old. In August 2000, petitioner was not eligible to retire. Instead, petitioner resigned.

NYCT does provide post-employment medical coverage if a prior vested employee had ten years of service in NYCERS and was within five years of receiving an unreduced pension at age 62.

On March 14, 2002, petitioner received a letter from New York State Department of Civil Service, Employee Benefits Division, informing him that he was eligible to continue his health insurance coverage under NYSHIP during his retirement, and that petitioner was enrolled in the Empire Plan with Family coverage. The cost of said coverage was paid by the participating employer, NYCT.

On February 19, 2004, petitioner retired from New York City service and noticed respondent NYCERS prior to that date. Petitioner was asked by NYCERS to purchase prior service adding to his time and making him eligible for retirement benefits. Petitioner bought [*4]back enough time to qualify for five years of service credit to be eligible for retirement benefits. Petitioner continued to receive health insurance coverage.

NYCT determined that petitioner was mistakenly provided with post employment health benefits. On July 23, 2004, petitioner was informed by NYCT that although he qualified for pension benefits with five years of credited service, he was ineligible for health insurance coverage which required at least ten years of credited service in the pension plan. On August 1, 2004, petitioner's health coverage was terminated.

All petitioner's attempts for reconsideration were denied. On October 25, 2006, NYCT sent a letter to petitioner informing him that because he is represented by counsel, they would no longer discuss the matter with him directly. Petitioner claims he received that letter on November 10, 2005. On March 9, 2005, petitioner filed this Article 78 petition.

A proceeding pursuant to Article 78 of the CPLR must be commenced within four months of the time that the decision complained of becomes final and binding (CPLR §217; DeMilio v Borghard, 55 NY2d 216, [1982]; Matter of Drake v Reuter, 27 AD3d 736 [2nd Dept. 2006]). An administrative determination is considered final and binding for purposes of CPLR §217[1] when it has an impact on the petitioner and when the petitioner knows he is aggrieved by it (Matter of Edmead v McGuire, 67 NY2d 714, [1986]). A petitioner's subsequent requests for reconsideration do not extend or toll the statute of limitations (Matter of Lubin v Board of Educ. Of City of New York, 60 NY2d 974 [1983]; Matter of Drake, supra.).

In a letter dated July 23, 2004, NYCT informed petitioner that his health coverage was to be terminated on August 1, 2004. Petitioner's unsuccessful attempts for reconsideration did not extend or toll the four month statute of limitations to commence an Article 78 proceeding. Petitioner's petition was served and filed over four months after the administrative determination by the NYCT to terminate his health coverage. By at least July 29, 2004, petitioner knew about the NYCT decision and was aggrieved by it.

MTA NYCT, and NYCERS' cross motion to dismiss the petition for failing to proceed within the statute of limitations, is granted.

The court also finds that the decision to terminate petitioner's post retirement health insurance coverage was made solely by the participating employer, New York City Transit (NYCT). The termination of health coverage by New York State Health Insurance Program (NYSHIP), as administered by the Employee Benefits Division (EBD) of the Department of Civil Service (DCS) was a ministerial act done at the behest of NYCT.

The petition is therefore dismissed as against NYSHIP and New York State Department of Civil Service.

Petitioner's request for the court to set aside NYCT's rule which requires ten years of credited service to be eligible for health insurance coverage is denied pursuant to CPLR §2214. CPLR §2214 states, in pertinent part, that a motion shall include supporting papers upon which the motion is based, the relief demanded, and the ground upon which the movant believes himself entitled to the relief.Petitioner makes a claim that the ten year rule for vestment of health insurance coverage upon retirement has no rational basis. Petitioner fails to provide the support for the grounds of such relief and the legal authority of the court to grant such. The petition must also fail on this request.

The foregoing constitutes the decision and order of this court.

__________________________________x [*5]

J.S.C.