Hildenbrand v. New York State Employees' Retirement System

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Comptroller which denied petitioner’s application for retirement benefits pursuant to section 75-h of the Retirement and Social Security Law. Petitioner’s sole contention, as limited by his brief, is that he qualified for retirement benefits pursuant to section 75-h (subd c, par [2]) of the Retirement and Social Security Law. He retired after 3 years, 10 months of State employment following approximately 25 years of accredited service with the Village of Solvay. At oral argument, respondent conceded that the record lacked substantial evidence as to whether the Village of Solvay maintained a retirement plan with benefits equal to or superior to that provided under section 75-h (subd c, par [2]). Accordingly, the determination should be annulled and the matter remitted for a new hearing solely on this issue. Determination annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent herewith. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.