Lynch v City of New York
2021 NY Slip Op 02751 [194 AD3d 416]
May 4, 2021
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 30, 2021


[*1]
 Patrick J. Lynch et al., Appellants-Respondents,
v
City of New York et al., Respondents-Appellants.

Friedman Kaplan Seiler & Adelman LLP, New York (Robert S. Smith of counsel), for appellants-respondents.

James E. Johnson, Corporation Counsel, New York  (John Moore of counsel), for respondents-appellants.

Order and judgment (one paper), Supreme Court, New York County (Margaret A. Chan, J.), entered on or about July 9, 2019, to the extent it denied in part plaintiffs' motion for summary judgment and granted in part defendants' motion for summary judgment, unanimously modified, on the law, to grant the part of plaintiffs' motion seeking summary judgment on their first, second, third, and fourth causes of action and declaring that defendants have wrongfully denied transfers, purchase, and buy-back of credit pursuant to Retirement and Social Security Law §§ 43, 513 (b), and 645 (2) and Administrative Code of City of NY §§ 13-143 and 13-218, and it is so declared, and otherwise affirmed, without costs.

Supreme Court properly converted this action seeking declaratory relief into a CPLR article 78 proceeding, since the "critical issue in the administration" of the retirement plans at issue "is the interpretation of the statute[s]" governing credit transfers, purchase, and buy-backs, and "when that issue is resolved it remains only for the [City] to perform ministerial acts, the making of arithmetic reckonings" (Matter of Town of Arietta v State Bd. of Equalization & Assessment, 56 NY2d 356, 362 [1982]). Plaintiffs' request to nullify any individual determinations essentially seeks review based on errors of law (see CPLR 7803 [3]).

Article 14 of the Retirement and Social Security Law establishes tier 3 employment but does not exclusively govern every right and benefit enjoyed by all tier 3 members (Lynch v City of New York, 35 NY3d 517, 527 [2020]). Pursuant to Retirement and Social Security Law § 519 (1), rules and regulations outside of Retirement and Social Security Law article 14 relating to the reemployment of retired members, transfer of members and reserves between systems shall apply to tier 3 members "unless inconsistent" with article 14.

Section 513 (c) (1), titled "Creditable service," provides eligibility requirements to obtain credit for service for prior service in defined public employment in the same terms as those enjoyed by tier 2 employees pursuant to Retirement and Social Security Law § 446 (c). Section 513 (c) (2) excludes from those broader eligibility requirements police/fire members other than those particular employees who meet the description under the statute, which provides: "A police/fire member shall be eligible to obtain credit for service with a public employer described in [section 513 (c) (1)] only if such service, if rendered prior to July first, nineteen hundred seventy-six by a police/fire member who was subject to article eleven of this chapter, would have been eligible for credit in the police/fire retirement system or plan involved."

So read, Retirement and Social Security Law § 513 (c) (2) does not conflict with the purchase and buy-back schemes provided under Retirement and Social Security Law §§ 513 (b) and 645 (2), which permit members to pay for service time. Nor does Retirement and Social Security Law § 513 (c) (2) conflict with sections 13-143 and 13-218 of the Administrative Code of the City of New York, which only confers rights on those members who meet the eligibility requirements of joining the Police Pension [*2]Fund (PPF) from specific public service roles that immediately precede their police service. New York State and Local Employees' Retirement System (NYSLERS) members who join the PPF also may avail themselves of the transfer rights under Retirement and Social Security Law § 43, which provides that "[a]ny member of the [NYSLERS] may transfer his membership to any retirement system, other than the hospital retirement system" (Retirement and Social Security Law § 43 [a]).

Our interpretation is foremost supported by the statutory language of Retirement and Social Security Law article 14, and furthermore accords with the fundamental principles of statutory interpretation that statutes should be read as a whole and that provisions should be read harmoniously so that each and every part of a statute can be given effect (Matter of Anonymous v Molik, 32 NY3d 30, 37 [2018]; see also McKinney's Cons Laws of NY, Book 1, Statutes §§ 97, 98).

Finally, nothing in the 2002 settlement agreement between the parties evinces the "intention of the parties at the time they entered into the contract" to apply the agreement to tier 3 members (AQ Asset Mgt. LLC v Levine, 111 AD3d 245, 256 [1st Dept 2013] [internal quotation marks omitted]), of whom there were none until July 1, 2009 (see Retirement and Social Security Law § 500 [c]; Lynch v City of New York, 23 NY3d 757, 765 [2014]).

We have considered the defendants' remaining contentions and find them unavailing. Concur—Manzanet-Daniels, J.P., Kapnick, Kennedy, Shulman, JJ. [Prior Case History: 2019 NY Slip Op 32092(U).]