CourtListener opinion 3192113

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Clean opinion text

State of New York
 Supreme Court, Appellate Division
 Third Judicial Department
Decided and Entered: April 7, 2016 521161
________________________________

In the Matter of VICTOR H.
 BATORKSY,
 Appellant,
 v

NEW YORK STATE OFFICE OF THE
 COMPTROLLER et al., MEMORANDUM AND ORDER
 Respondents.

ANGELA M. BATORKSY,
 Respondent.

________________________________

Calendar Date: February 18, 2016

Before: Peters, P.J., Garry, Rose and Devine, JJ.

 __________

 Victor H. Batorsky, Rensselaer, appellant pro se.

 Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for New York State Office of the Comptrollers
and others, respondents.

 Young, Fenton, Kelsey & Brown, PC, Albany (Andrea L. Kelsey
of counsel), for Angela M. Batorsky, respondent.

 __________

Garry, J.

 Appeal from an order and judgment of the Supreme Court
(O'Connor, J.), entered July 30, 2014 in Albany County, which
dismissed petitioner's application, in a combined proceeding
pursuant to CPLR article 78 and action for declaratory judgment,
to review a determination of the Deputy Comptroller denying
 -2- 521161

petitioner's request to change his retirement election option.

 Petitioner, a retired state employee and member of
respondent New York State and Local Retirement System, was
formerly married to interested party Angela M. Batorsky, who is
also a retired state employee and Retirement System member.
Their 2002 judgment of divorce and incorporated stipulations of
settlement required petitioner to pay a share of his pension
benefits to Batorsky calculated according to the formula set
forth in Majauskas v Majauskas (61 NY2d 481 [1984]). In 2005,
Supreme Court (Ceresia Jr., J.) signed a domestic relations order
(hereinafter the 2005 order) that, as relevant here, directed
petitioner to select Batorsky as alternate payee upon his
retirement and to elect a specified retirement option by which,
following his death, she would receive a benefit calculated
according to the Majauskas formula.1 The Retirement System
subsequently calculated the survivorship benefits in accord with
this plan.

 Petitioner thereafter sought postjudgment relief relative
to the distribution of his pension benefits. While engaged in
these negotiations, petitioner also filed an application to
retire with an effective date of September 25, 2010. In response
to his notification regarding potential revisions, in August
2010, the Retirement System advised that it would implement the
2005 order unless it was served with an order terminating or
amending it before September 25, 2010. Thereafter, the
Retirement System advised petitioner of the requirements of the
2005 order and directed him to complete and sign a retirement
option election form. In the fall of 2010, following additional
communications with the parties and their counsel, the Retirement
System approved a proposed amended domestic relations order, and
extended the deadline for petitioner to submit his option form to

 1
 A corresponding order required Batorsky to make certain
retirement elections for petitioner's benefit; that order is not
at issue in this appeal.
 -3- 521161

October 31, 2010.2 Late in October 2010, the Retirement System
advised petitioner that the deadline could not be further
extended, and that the Retirement System was legally bound to
implement the 2005 order until it was served with an order that
superseded or vacated it or restrained the Retirement System from
implementing it. No such order was served before October 31,
2010. The Retirement System advised petitioner in November 2010
that it would apply the terms of the 2005 order to his
retirement. In December 2010, petitioner requested a hearing to
dispute this determination.

 Also in December 2010, upon the consent of petitioner and
Batorsky, Supreme Court issued an amended domestic relations
order (hereinafter the 2010 order) that vacated and superseded
the 2005 order and, among other things, changed the calculation
of Batorsky's survivorship benefit. The Retirement System
refused to implement the 2010 order, stating that a retiree has
30 days after the first day of the month following the effective
date of his or her retirement to change an option election
pursuant to Retirement and Social Security Law §§ 90 and 100,
that the time to alter Batorksy's survivorship benefit had passed
as a matter of law, and that payments would continue to be made
pursuant to the 2005 order until the Retirement System received
an amended order \which satisfies the requirements of law.\"