New York Court of Appeals, 1982

Tomasino v. New York State Employees' Retirement System

Tomasino v. New York State Employees' Retirement System
New York Court of Appeals · Decided September 14, 1982
57 N.Y.2d 753; 440 N.E.2d 1330; 454 N.Y.S.2d 983; 1982 N.Y. LEXIS 3676
Tomasino v. New York State Employees' Retirement System

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Opinion of the Court

*755OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs. The determination of the State Comptroller denying petitioner’s application for an annulment of decedent’s statutorily prescribed retirement option and for a designation óf herself as beneficiary under another option was not arbitrary or capricious. Ortelere v Teachers’ Retirement Bd. of City of N. Y. (25 NY2d 196) does not require a different result. In Ortelere, we held that a mentally incompetent’s affirmative choice of a retirement option could be set aside under the circumstances of that case. Decedent in the present case, however, made no affirmative choice of a retirement option. This lack of choice may not now be set aside (see McCarthy v Levitt, 59 AD2d 952, mot for lv to app den 43 NY2d 647).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Gabrielli.

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