McLaughlin v. New York City Employees' Retirement System

OPINION OF THE COURT

Memorandum.

Judgment reversed, without costs, and matter remanded to the court below for further proceedings.

The defendant correctly took into account, when computing plaintiff’s pension, the withdrawal of funds made by plaintiff from the pension fund. Although it appears that such with*59drawal was made with the consent of the Board of Estimate and the Mayor, the defendant is not estopped from subtracting the actuarial equivalent of the deficiency caused thereby from the amount due plaintiff (see 21 NY Jur, Estoppel, Ratification and Waiver, § 83). However, as noted by this court on the prior appeal (96 Misc 2d 56), the delay in making payment to plaintiff was unreasonable in the absence of any explanation therefor. Consequently, the matter must be remanded to the court below for a determination of interest due for the period of unreasonable delay (see Post v New York City Employees’ Retirement System, 41 AD2d 606).

Concur: Buschmann, P. J., and Mangano, J.; Kirsch, J., taking no part.