Kivo v. Levitt — 50 N.Y.2d 1017

Majority

p. 1017

In the Matter of Sadie Kivo, Appellant, v Arthur Levitt, as Administrator of the New York State Employees’ Retirement System and Comptroller of the State of New York, Respondent.

Argued May 28, 1980;

decided July 1, 1980

p. 1018

APPEARANCES OF COUNSEL

Beverly Gross and Steven C. Decosta for appellant.

Robert Abrams, Attorney-General (William J. Kogan and Shirley Adelson Siegel of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The judgment appealed from should be affirmed, with costs, essentially for the reasons stated in the opinion by Mr. Justice Staley at the Appellate Division.

We agree with the court below that respondent’s interpretation of section 2 (subd 2, par a) of the Retirement and Social Security Law as excluding deferred pay increases not yet paid to the retiree from the wage base for computation of pension benefits is entirely proper and must be upheld. We note, however, that we express no opinion on the question whether section 431 of the Retirement and Social Security Law would require the same result had petitioner actually received the

p. 1019

pay increases in issue as a lump sum, for this question is not presented by the facts of this case.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment affirmed, with costs, in a memorandum.