IN THE MATTER OF GLADYS A. ENDRESON v. THE NEW YORK CITY EMPLOYEES'
RETIREMENT SYSTEM,
83 N.Y.2d 888, 636 N.E.2d 1380, 613 N.Y.S.2d 847 (1994).
March 17, 1994
1 No. 27 (1994 NY Int. 031)
Decided March 17, 1994
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
MEMORANDUM:
The order of the Appellate Division should be reversed, without costs,
the petition reinstated, and the matter remitted to Supreme Court for
further proceedings in accordance with this memorandum.
William Endreson began working as a Bridge and Tunnel Officer with the
Triborough Bridge and Tunnel Authority on July 17, 1974. Authority
employees hired between July 1, 1973 and June 30, 1976 became Tier II
employees governed by Article 11 of the Retirement and Social Security
Law, and Endreson entered the New York City Employee Retirement System
on August 13, 1974. (n 1) On July 26, 1975, Endreson elected to
receive a death benefit pursuant to Retirement and Social Security Law
§ 448(a)(1), which allowed for payment of one month's salary for every
year of service, up to 36 years.
Endreson developed lung cancer and died on December 19, 1989. He last
reported for work on September 26, 1988, when he was granted a medical
leave of absence, receiving short-term disability payments until
February 23, 1989, and long-term disability payments from late
February until his death ten months later. During the period of
short-term disability, Endreson received payment for
"check-in/check-out" time, in accordance with the collective
bargaining agreement, which also mandated that the payment be included
as "earnings" for the purpose of pension computations.
The claim of appellant, Endreson's widow, for his death benefit was
denied by an administrator of the New York City Employees' Retirement
System (NYCERS), on the grounds that Retirement and Social Security
Law § 448(e) bars recovery of a death benefit to survivors of
employees who die while "off the payroll" and were not "on the payroll
in such service and paid within a period of twelve months prior to his
death." The president of the Triborough Bridge and Tunnel Authority
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
The order of the Appellate Division should be reversed, without costs, the petition
William Endreson began working as a Bridge and Tunnel Officer with the Triborough Bridge and
Authority employees hired between July 1, 1973 and June 30, 1976 became Tier II employees
On July 26, 1975, Endreson elected to receive a death benefit pursuant to Retirement and
During the period of short-term disability, Endreson received payment for
The claim of appellant, Endreson's widow, for his death benefit was denied by an
The president of the Triborough Bridge and Tunnel Authority unsuccessfully sought to
The Appellate Division reversed, however, concluding that section 448referred only to payment
While the parties' contentions focus on whether "check- in/check-out" pay constitutes being
Respondent NYCERS asserts, without authority, that it is not bound by a regulation of the New
The Legislature added this provision in 1972 to prevent courts from ruling on broad-scale
The Comptroller may decline to intervene, but under the statute must be given opportunity to
Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.
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