The IAS court's determination not to convert the instant proceeding to a declaratory judgment action was proper since petitioner's challenge to respondents' denial of her application for ordinary disability retirement benefits, as set forth in her petition and supporting submissions, does not attack the constitutional validity of the statute upon which the denial of benefits was premised, i.e. Retirement and Social Security Law § 62(aa)(2). Instead, petitioner urges that the statute was applied in an unconstitutional manner as against her (see, Matter of Kovarsky v. Hous. Dev. Admin. of City of New York, 31 N.Y.2d 184, 191), a claim for which an article 78 proceeding is the proper vehicle (id.).
In any event, the IAS court properly determined that the proposed declaratory judgment action had no merit inasmuch as satisfaction of the 90-day filing requirement set forth in Social Security Law § 62 "constitutes a condition precedent to the ripening of any rights to . . . benefits from which a claim of due process can arise" (Matter of Grossman v. McCall, 262 A.D.2d 923, 924, appeal dismissed 94 N.Y.2d 796,lv denied 94 N.Y.2d 765; see also, Matter of Callace v. New York State Employees' Retirement Sys., 140 A.D.2d 756, lv denied 72 N.Y.2d 806).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.