Appealing retirement system member service determinations Marsh v NY State and Local Employees' Retirement System, App. Div., 291 AD2d 713 The Marsh decision addresses the procedure to follow when challenging a New York State and Local Employees' Retirement System's [ERS] determination regarding a retiree's "years of service credit" for the purpose of determining the individual's retirement allowance. The bottom line: the controlling statute of limitations requires that the individual file an Article 78 [Civil Practice Law and Ruled Article 78] petition within four months of his or her receipt of the "final determination" concerning the calculation of years of service credit. Two members, Patricia M. Marsh and Nicholas J. Vianna, believed that they were entitled to more member service credit than ERS calculated for them upon their respective retirements. ERS sent Marsh a letter dated April 25, 1997, advising her of its determination to prorate certain of her member service credit because she worked part time during various periods during her public employment. Marsh retired on March 30, 2000. Vianna retired on January 1, 1997. ERS told him that he had 17.37 years of member service credit for the purposes of determining his retirement allowance. Neither Marsh nor Vianna requested an administrative hearing and redetermination of their retirement benefits as determined by ERS. However, in January 2000 they filed a petition asking the court for a "declaratory judgment" that they were entitled to additional service credit. The Appellate Division said that it was clear that Marsh and Vianna were simply challenging the calculation of their respective "service credits" by challenging ERS's "nearly 25-year-old internal administrative proration procedure as well as an administrative regulation codifying such procedure" set out in 2 NYCRR 370. The court said that the procedure to be used if an individual believes that his or her member service credit has been miscalculated is expressly governed by Retirement and Social Security Law Sections 74 [b] and 374 [b]. These provisions, said the Appellate Division, require that a member or retiree "dissatisfied with any aspect of his or her retirement package" appeal to the Comptroller by seeking "a hearing and redetermination." If, following this appeal, the individual is dissatisfied with the Comptroller's final determination, he or she must bring a timely Article 78 proceeding if he or she wishes to seek any further relief. The statute of limitations for bringing an Article 78 action is four months. The court pointed out that the "simple expedient" of calling their current action one for declaratory relief and "characterizing the matter as one of constitutional and contractual dimension" does not cure "this fatal inaction" on the part of both Marsh and Vianna. Clearly filing an Article 78 action in January 2000 was untimely, said the court, and it dismissed both Marsh's and Vianna's petitions.
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