McKenna v. DiNapoli — 125 A.D.3d 1081

Majority

p. 1081

In the Matter of Patrick M. McKenna, Petitioner, v Thomas P. DiNapoli, as Comptroller of the State of New York, et al., Respondents.

[999 NYS2d 777]—

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner’s application to restore retirement service credits.

Petitioner, an attorney, provided legal services to the Nassau County Bridge Authority on a part-time basis beginning in 1999. Respondent Comptroller determined that petitioner had provided those services as an independent contractor, rather than an employee, and was not entitled to service credit in respondent New York State and Local Retirement System. Petitioner then commenced this CPLR article 78 proceeding and respondents now concede that the determination was not supported by substantial evidence. We agree (see e.g. Matter of Brothman v DiNapoli, 114 AD3d 1072 , 1073-1074 [2014]; Matter of Mowry v DiNapoli, 111 AD3d 1117 , 1118-1120 [2013]) and, accordingly, annul.

p. 1082

Peters, P.J., Rose and Egan Jr., JJ., concur. Adjudged that the determination is annulled, without costs, petition granted and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court’s decision.

Cases cited

Brothman v. DiNapoli 114 AD3d 1072 N.Y. App. Div. 2014-02-20 at 1073-1074 p. 1081
Mowry v. DiNapoli 111 AD3d 1117 N.Y. App. Div. 2013-11-21 at 1118-1120 p. 1081