McKenna v. Dinapoli

CLARK

Patrick M. McKenna, Malverne, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.
Before: PETERS, P.J., ROSE, EGAN JR. and CLARK, JJ.

CLARK, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's application to restore retirement service credits.

Petitioner, an attorney, provided legal services to the Nassau County Bridge Authority on a part-time basis beginning in 1999. Respondent Comptroller determined that petitioner had provided those services as an independent contractor, rather than an employee, and was not entitled to service credit in respondent New York State and Local Retirement System. Petitioner then commenced this CPLR article 78 proceeding and respondents now concede that the determination was not supported by substantial evidence. We agree ( see e.g. Matter of Brothman v. DiNapoli, 114 A.D.3d 1072, 1073–1074, 980 N.Y.S.2d 625 [2014]; Matter of Mowry v. DiNapoli, 111 A.D.3d 1117, 1118–1120, 976 N.Y.S.2d 577 [2013] ) and, accordingly, annul.

ADJUDGED that the determination is annulled, without costs, petition granted and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision. PETERS, P.J., ROSE and EGAN JR., JJ., concur.