Supreme Court, Albany County, May 3, 2024

Paul F. Cagino, Glenmont, for petitioner.

Letitia James, Attorney General, Albany (Thomas A. Cullen of counsel), for respondents.

Petitioner Donald McKnight brings this proceeding under CPLR article 78, challenging a final determination of respondent New York State and Local Retirement System (NYSLRS) that denied him the right to purchase three years of retirement credit for prior federal military service (see NY St Cts Elec Filing [NYSCEF] Doc No. 1 [petition] ¶ 1). Respondents oppose the petition through a verified answer (see NYSCEF Doc No. 20).{**84 Misc 3d at 406}[*2]

Background

Petitioner was a commissioned officer in the United States Navy for 23 years, from 1982 to 2005 (see petition ¶ 3). He then began employment with the New York State Police (NYSP) in 2006, thereby becoming a member of NYSLRS, a State retirement system (see id. ¶ 4).

Based on petitioner's naval experience, the Governor ordered him to New York State active duty (SAD) on April 14, 2008, to command the State Naval Militia's Emergency Boat Services (see id. ¶ 5). Petitioner continues to serve in that role (see id.).

Although petitioner remains an employee of NYSP while on SAD, he does not receive retirement credit while on military leave (see id. ¶ 6). In January 2022, following a hearing, petitioner purchased 11.86 years of credit for his State military service under Military Law § 242 (see NYSCEF Doc No. 21 at 32, 93-94; NYSCEF Doc No. 22 ¶ 5; see also NYSCEF Doc No. 13).

Petitioner then applied on December 22, 2021, to purchase credit for three years of federal military service under Retirement and Social Security Law § 1000 (1), which allows a member of a retirement system to purchase "a total not to exceed three years of service credit for up to three years of military duty, as defined in [Military Law § 243]."

On June 12, 2023, following another hearing, respondents denied the request on the constraint of Retirement and Social Security Law § 1000 (4), which provides: "In no event shall the credit granted pursuant to [Retirement and Social Security Law § 1000], when added to credit granted for military service with any retirement system of this state pursuant to this or any other provision of law, exceed a total of three years" (see NYSCEF Doc No. 2 [final determination] [emphasis added]). Respondents determined that granting petitioner "any additional service credit" under Retirement and Social Security Law § 1000 (1) "is restricted by the three-year limitation" of subdivision (4) (id. at 8). This proceeding ensued.

Discussion

Petitioner challenges the denial of retirement credits for his prior federal military service under CPLR 7803 (3), which limits judicial review to whether the challenged agency determination "was made in violation of lawful procedure, was affected{**84 Misc 3d at 407} by an error of law or was arbitrary and capricious or an abuse of discretion" (see NYSCEF Doc No. 14).^[FN1]

Under this deferential standard, agency action will be overturned only if it was taken "without sound basis in reason and . . . without regard to the facts" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). "Furthermore, given that [respondents are] charged with administering the retirement statutes at issue, [their] interpretations are entitled to deference and should be upheld unless they are irrational, unreasonable or inconsistent with the governing law" (Matter of Porco v New York State Teachers' Retirement Sys., 140 AD3d 1457, 1458 [3d Dept 2016]; see Matter of McMorrow v Hevesi, 6 AD3d 925, 927 [3d Dept 2004]).

Retirement and Social Security Law § 1000 (1) allows a retirement system member to "obtain a total not to exceed three years of service credit for up to three years of military duty, as defined in [Military Law § 243],[*3] if the member . . . was honorably discharged from the military." There is no dispute that (i) petitioner's service in the United States Navy qualifies as "military duty" under Military Law § 243, (ii) petitioner was honorably discharged, and (iii) the period for which petitioner seeks credit falls within the periods allowed by Retirement and Social Security Law § 1000 and Military Law § 243.

As properly framed by the hearing officer, "[t]he real issue . . . is whether [petitioner's] prior purchase of close to 11.86 years of state active duty, not federal service under [Military Law §] 243, toward his state pension disallows his purchase of 3 years of federal active duty service as defined under RSSL . . . § 1000" (final determination at 6).

Although subdivision (1) of Retirement and Social Security Law § 1000 authorizes a retirement system member to purchase up to three years of service credit for military duty, subdivision (4) limits the credits that can be granted in the following manner: "In no event shall the credit granted pursuant {**84 Misc 3d at 408}to [Retirement and Social Security Law § 1000], when added to credit granted for military service with any retirement system of this state pursuant to this or any other provision of law, exceed a total of three years."

Petitioner argues that the "purchase of credit for his State [military] service" under Military Law § 242 "is separate and should not prevent him from purchasing credit for his Federal Military service," which "pre-date[d] his entry into [NYSLRS] and his State Active Military service" (petition ¶ 15). But this argument runs counter to Retirement and Social Security Law § 1000 (4), which encompasses "credit granted for military service . . . pursuant to this or any other provision of law" (emphasis added). The court therefore concludes that the plain language of Retirement and Social Security Law § 1000 (4) obliged NYSLRS to take into account the retirement credits granted to petitioner for his State military service under Military Law § 242 in applying the three-year cap.

Petitioner next contends that his purchase of retirement credits for federal military service is not inconsistent with the purpose of Retirement and Social Security Law § 1000 (4) (see petition ¶ 16), which is "to prevent multiple buy backs [of federal military service credit] under different provisions of law[,] resulting in a person receiving more than three years credit under the provision of Article 20, as defined under [Military Law] § 243" (id. [emphasis omitted]). Again, by its clear and express terms, Retirement and Social Security Law § 1000 (4) applies to credits granted to a member for "military service" pursuant to "any . . . provision of law," which necessarily encompasses Military Law § 242.^[FN2]

Finally, the court is unpersuaded by petitioner's contention that the denial of credits is violative of Military Law § 242 (4), which protects the employment rights of public employees while on military leave. Respondents construe Military Law § 242 (4) as applying only "to service credit for the period in which a member is on a leave of absence from state service due to active military duty," and petitioner "is not requesting service credit for [such] a period . . . , but rather service credit for a period of federal service which predated his state service" (final determination at 7-8; cf. NYSCEF Doc No. 13 at 8).{**84 Misc 3d at 409}

Although petitioner maintains that he is being penalized for his State military service—"if petitioner had never been ordered to State active military duty and instead remained with the NYSP, he would be entitled to purchase his three-year credit for his Federal military service, pursuant to [Retirement and Social Security Law § 1000 (4)]" (petition ¶ 23)—NYSLRS's construction of the statute has not been shown to be irrational or unreasonable. Additionally, it bears emphasis that the three-year [*4]cap of Retirement and Social Security Law § 1000 (4) was an integral part of the legislation that gave public employees a limited right to purchase credit for federal military service (see L 2000, ch 548), and the Legislature enacted the statute in 2000 with full knowledge of the earlier-enacted employment protections of Military Law § 242 (4) (see Matter of Schriro v New York State Teachers' Retirement Bd., 63 AD2d 751, 752 [3d Dept 1978] ["It must be presumed that the two statutes were intended by (the State Legislature) to be compatible"]; accord Alweis v Evans, 69 NY2d 199, 204-205 [1987]).

As observed by respondents in a confidential legal memorandum submitted to the hearing officer (see NYSCEF Doc No. 12 [memo]; see also petition ¶¶ 27-30), the real problem here is the drafting of Retirement and Social Security Law § 1000 (4), a rarely-applied statutory provision that "contains a problematic limitation" that can generate "perverse" results at times (memo at 1 [emphasis omitted]). But the Comptroller, as the administrative head of NYSLRS, "may not grant [a benefit] in the absence of statutory authority for such action" (Matter of Morrissey v New York State Employees' Retirement Sys., 298 NY 442, 449 [1949]). The court therefore commends to the State Legislature consideration of a remedy to ensure that public employees called to State active duty are not unfairly disadvantaged by that service in relation to retirement credits.

Conclusion

Based on the foregoing, it is ordered and adjudged that the petition is dismissed.