Opinion
November 29, 1990
Appeal from the Supreme Court, Albany County.
Contrary to petitioner's argument, since his membership in respondent New York State Employees' Retirement System was optional, he could not become a member of it until his application was actually filed with respondent Comptroller (see, Retirement and Social Security Law §§ 40, 74). Although petitioner was hired on June 28, 1976, the record shows that his application was not filed with the appropriate officials until August 12, 1976 (see, Matter of McBride v. Regan, 125 A.D.2d 797), which was after the cutoff date of July 27, 1976 for enrollment as a tier II member (see, Civil Serv. Employees Assn. v. Regan, 71 N.Y.2d 653). Therefore, the tier III status accorded petitioner was proper (see, Matter of Klein v. Regan, 165 A.D.2d 944).
Determination confirmed, and petition dismissed, without costs. Kane, J.P., Casey, Levine, Mercure and Harvey, JJ., concur.