In the Matter of David Kaslow, Respondent,v.City of New York, et al., Appellants.BriefN.Y.February 11, 2014 REPRODUCED ON RECYCLED PAPER Supreme Court, Kings County To be argued by Index No. 3752/10 KEITH M. SNOW (15 Minutes) COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of DAVID KASLOW, Petitioner-Respondent, For a Judgment under Article 78 of the Civil Practice Law and Rules, - against - THE CITY OF NEW YORK and THE NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Respondents-Appellants. APPELLANTS’ BRIEF MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Respondents-Appellants, 100 Church Street, Room 5-147 New York, New York 10007 ksnow@law.nyc.gov Tel: (212) 356-4055 Fax: (212) 356-4099 PAUL T. REPHEN, KEITH M. SNOW, of Counsel June 28, 2013 1 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................................................................iii PRELIMINARY STATEMENT ............................................................................... 1 JURISDICTION.........................................................................................................4 QUESTION OF LAW ............................................................................................... 4 STATEMENT OF FACTS ........................................................................................ 4 DECISIONS BELOW................................................................................................ 7 A. The Supreme Court. ...............................................................................7 B. Appellate Division, Second Department. ..............................................7 APPLICABLE STATUTORY PROVISIONS..........................................................8 ARGUMENT ...........................................................................................................10 THE LOWER COURTS ERRED IN DIRECTING NYCERS TO AWARD AN ADDITIONAL PENSION BENEFIT CALCULATION FOR PRIOR NON- CORRECTION CITY SERVICE UNDER THE TIER 3 CO-20 PLAN. ......................................................10 A. Standard of Review..............................................................................10 B. The Plain Language of the Statute Requires that Only Tier 3 CO-20 Plan Provisions Apply to Petitioner.........................................11 C. NYCERS’s Determination that Petitioner’s Benefit Calculation is Limited to the Tier 3 CO-20 Plan is Consistent with the Statutory Framework of Public Pension Benefits. ..............................................12 (a) Tier 1 Correction Officers. .............................................................13 ii (b) Tier 2 Correction Officers ..............................................................14 (c) Tier 3 Correction Officers. .............................................................15 (d) The Tier 2 and Tier 3 CO-20 Plans................................................16 (e) NYCERS’s Determination is Consistent with this Statutory Structure and Explicit Tier 3 Applicability Provisions. ......................17 D. NYCERS’s Determination that “Credited Service” is Defined as Allowable Correction Service for Post-December 19, 1990 Plan Members is Rational. ...........................................................................18 CONCLUSION..................................................................................................22 iii TABLE OF AUTHORITIES Cases Page Benesowitz v. Metro. Life Ins. Co., 8 N.Y.3d 661 (2007) ......................................20 Guido v. New York State Teachers’ Ret. Sys., 94 N.Y.2d 64 (1999).....................21 Morales v. Cty. of Nassau, 94 N.Y.2d 218 (1999) ..................................................12 Roberts v. Murphy, 2 N.Y.3d 641 (2004)................................................................19 Suffolk Regional Off-Track Betting Corp. v. New York State Racing and Wagering Bd., 11 N.Y.3d 559, 567 (2008) ................................. 11, 18 Wertheim v. New York City Teachers’ Ret. Sys., 91 A.D.2d 514 (1st Dep’t 1982) .....................................................................................................17 Wooley v. New York State Dep’t of Correctional Servs., 15 N.Y.3d 275 (2010) ............................................................................................10 New York Statutes, Codes, Rules and Regulations Page CPLR § 5501..............................................................................................................4 CPLR § 5602..............................................................................................................4 NYC Admin. Code Title 13 ........................................................................... 5, 12-15 NYC Admin. Code § 13-155 .........................................................................7, 13, 14 NYC Admin. Code § 13-214 .....................................................................................3 RSSL Article 11 (§§ 440-451).................................................................5, 12, 14, 15 RSSL Article 14 (§§ 500-520).................................................................4, 12, 15, 19 RSSL Article 15 (§§ 600-617).......................................................................4, 12, 15 iv RSSL § 443 ..............................................................................................................14 RSSL § 445 ..............................................................................................................14 RSSL § 445-a .....................................................................................................16, 18 RSSL § 500 ..............................................................................................................17 RSSL § 501 ................................................................................................... 3, 16, 19 RSSL § 503 ................................................................................................................2 RSSL § 504 ................................................................................................................2 RSSL § 504-a ................................................................................................... passim RSSL § 604-a ...........................................................................................................11 RSSL § 604-e ...........................................................................................................12 RSSL § 604-f ...........................................................................................................12 Miscelaneous Authorities Chapter 939 of the Laws of 1990.............................................................................16 McKinney’s Statutes § 240......................................................................................12 1 COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of DAVID KASLOW, Petitioner-Respondent, For a Judgment under Article 78 of the Civil Practice Law and Rules, - against - THE CITY OF NEW YORK and THE NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Respondents-Appellants. APPELLANTS’ BRIEF PRELIMINARY STATEMENT Respondents-appellants, the City of New York (the “City”) and the New York City Employees’ Retirement System (“NYCERS”) (collectively, “appellants”), appeal from the Decision, Order and Judgment (one paper) of the Appellate Division, Second Department (the “Second Department”), dated January 16, 2013. The Second Department affirmed the Decision and Order (one paper) of the Supreme Court, Kings County, dated April 6, 2011 and entered on April 18, 2011 (David B. Vaughan, J.S.C.) (5).1 1 Numbers in parentheses, unless otherwise indicated, refer to pages in the Record on Appeal. 2 The Lower Courts directed appellants to recalculate the pension of petitioner-respondent, David Kaslow (“petitioner”), a retired member in the “twenty-year program for New York City correction members below the rank of captain” (the “Tier 3 CO-20 Plan” or “the Plan”). See Retirement and Social Security Law (“RSSL”) § 504-a. The Courts directed NYCERS to include in petitioner’s Tier 3 CO-20 Plan pension an additional benefit calculation, at a different rate, for his prior non-correction City service pursuant a Tier 1 pension calculation provision. The Lower Courts’ direction is erroneous. The plain language of the Tier 3 CO-20 Plan, the statutory framework and the Legislative history of the Plan do not support the Lower Courts’ application of a Tier 1 pension calculation provision for a Tier 3 C0-20 Plan member. Tier 1 pension calculation provisions do not apply to Tier 3 members. The purpose of enacting of the Tier 3 CO-20 Plan was to create a 20- year plan similar to other City 20-year uniformed plans – it was not to award Tier 3 members Tier 1 benefits. The Plan made several enhancements and limitations to the exiting Tier 3 provisions. It provided an improved benefit to eligible Tier 3 members by deceasing from 25 to 20 the amount of years of service needed to be eligible to retire. Compare RSSL §§ 503(c) with 504-a(c)(1). It also increased from 25 to 30 years the maximum amount of service that could be used towards a retirement benefit calculation. Compare RSSL §§ 504(d) with 504-a(c)(2)(ii). 3 The Tier 3 CO-20 Plan also limited certain Tier 3 provisions to conform with other 20-year uniformed plans. “Credited service” for existing Tier 3 members was defined as any service (i.e. non-uniformed) in one of the public retirement systems within the state. See RSSL § 501(c). However, other 20-year plans require 20 years of uniformed service. See e.g. NYC Admin. Code §§ 13- 214(3). Therefore, “credited service” for new members mandated into the Plan after December 19, 1990 was explicitly re-defined to be consistent with these other plans that require 20 years of uniformed service. See RSSL § 504-a(b)(4). Accordingly, NYCERS defined “credited service” as “allowable service rendered in the uniformed correction force” (or “allowable correction service”) for post-December 19, 1990 Plan members. NYCERS consistently applied this same definition throughout the Plan, including determinations regarding retirement eligibility, pension benefit calculations, member contributions and vesting. See RSSL §§ 504-a(c)(1), 504-a(c)(2), 504-a(d)(3) and 504-a(e)(1). Although the Lower Courts’ direction permits NYCERS to define “credited service” as allowable correction service in the context of retirement eligibility, member contributions and vesting, it improperly requires an inconsistent and legally flawed definition with regard to pension benefit calculations. For the reasons stated herein, the Decisions appealed from should be reversed and the Petition dismissed. 4 JURISDICTION This Court has jurisdiction to consider and decide this appeal pursuant to Civil Practice Law and Rules (“CPLR”) § 5602(a), in that the Decision appealed from is a final determination, and to entertain the question of law raised herein pursuant to CPLR § 5501(b), which was properly preserved for review (31-32).2 QUESTION OF LAW Whether the Lower Courts erred in directing appellants to either ignore, or inconsistently apply language in, the applicable Tier 3 CO-20 Plan pension calculation statue, and to add to petitioner’s Tier 3 retirement benefit, contrary to the express Tier 3 CO-20 Plan provisions, an additional benefit calculation pursuant to an inapplicable Tier 1 pension calculation statute? STATEMENT OF FACTS Petitioner was appointed as a storekeeper with the DEP on September 14, 1987, and became a Tier 4 NYCERS member pursuant to RSSL Article 15 (36). Petitioner worked at the DEP until April 24, 1991, for what would have been a non-vested 3.605 years of service under the Tier 4, Article 15, provisions in RSSL § 609 (76). On April 25, 1991, petitioner began employment with the New York City Department of Correction (“DOC”) (38). At that time, he was mandated into the Tier 3 CO-20 Plan pursuant to RSSL Article 14, which is a separate and 2 See also Appellant’s Brief dated February 11, 2011. 5 distinct Tier and Plan from his prior Tier 4 NYCERS membership (36, 38). While working at DOC, petitioner purchased and was credited with three years of service credit under the Tier 3 CO-20 Plan for his prior military service with the United States Navy (40-45). See RSSL § 1000. Prior to his retirement, petitioner made several inquiries to NYCERS about his pension (47-53). By letter dated August 30, 2007, NYCERS detailed petitioner’s membership history, and explained to him that under the Tier 3 CO-20 Plan he is entitled to service credit only for allowable correction service, and that he is not entitled to any additional benefit calculation, in his Plan, for his prior non- correction DEP service (55). In a letter dated December 8, 2008, petitioner’s counsel, citing to a Tier 1 statute – a Tier to which petitioner does not belong – asked NYCERS why petitioner would not receive a similar benefit and be entitled to have his DEP service included in his retirement benefit calculation (57-58). On March 25, 2009, NYCERS explained that the calculation of petitioner’s pension benefit is not governed by the provisions in the NYC Admin. Code, which apply to Tier 1 members and to certain Tier 2 members subject to RSSL Article 11 restrictions, but rather by RSSL § 504-a(c)(2), the applicable benefit calculation provisions for Tier 3 CO-20 Plan members (60). 6 NYCERS’s determination in this regard is consistent its position since the Plan’s inception (142), and as published in NYCERS’s Tier 3 Summary Plan Description (150). Prior to the commencement of this proceeding, appellants are unaware of any other legal challenges to NYCERS’s interpretation of this statutory provision. On June 9, 2009, petitioner filed an application for service retirement (62-70). After exhausting his terminal leave, petitioner retired effective July 2, 2009 (72). On November 12, 2009, NYCERS notified petitioner that his retirement benefits had been processed and approved, and provided him with his final pension calculation (72). Meanwhile, on or about October 28, 2009, petitioner filed an Article 78 proceeding in the New York State Supreme Court, New York County, challenging NYCERS’s determination regarding the calculation of his Tier 3 CO- 20 Plan pension (8-17). In December 2009, appellants served and filed a verified answer and a demand for change of venue (111-131). By Order dated January 12, 2010, venue of the proceeding was transfer, pursuant to stipulation, from the county of New York to the county of Kings (133). The proceeding was then assigned to the Honorable Bernadette Bayne, J.S.C., who, by Order dated May 28, 2010, recused herself (138). Thereafter, this matter was assigned to the Honorable David B. Vaughan, J.S.C., and amended pleadings were filed (140). 7 DECISIONS BELOW A. The Supreme Court. The Lower Court, in a Short Form Order, found that: Petitioner’s application pursuant to Article 78 is granted in its entirety. Respondent NYCERS shall recalculate [petitioner]’s pension to include his DEP service. The Court provided neither opinion nor reasoning for its conclusion (5, 278). However, in granting the relief requested (5), the Supreme Court directed NYCERS to award petitioner 75% of 1/60 of his final average salary for each year of his prior DEP service pursuant to a portion of NYC Admin. Code § 13-155, an inapplicable Tier 1 pension calculation provision (16). B. Appellate Division, Second Department. By Decision, Order and Judgment (one paper) dated January 16, 2013, the Second Department, without explicit reasoning and without addressing appellants’ legal arguments, affirmed the Decision below. The Court noted that an agency’s interpretation of the regulations it administers should be given great weight so long as it is neither irrational, unreasonable nor inconsistent with governing law, and held: Here, the NYCERS’s interpretation of the term “credited service,” pursuant to [RSSL] § 504-a, was irrational, unreasonable, and inconsistent with the other applicable statutes governing the retirement benefits of officers employed with the DOC . . . . Under 8 the circumstances presented here, for purposes of calculating his retirement benefits, the petitioner was entitled to have his credited service include his civilian service with the City of New York. Accordingly, the Supreme Court properly granted the petition (284). APPLICABLE STATUTORY PROVISIONS The Tier 3 CO-20 Plan provision limiting the term “credited service” to allowable correction service for post-December 19, 1990 Plan member is contained in RSSL § 504-a(b)(4), which states: 4. Each New York city correction member below the rank of captain who becomes subject to the provisions of this article after the starting date of the twenty-year retirement program . . . shall become a participant in the twenty-year retirement program on the date he or she becomes such a correction member. Notwithstanding any other provision of law to the contrary, a New York city correction officer below the rank of captain who becomes a participant in the [Tier 3 CO-2O Plan] by becoming subject to the provisions of this article after . . . [December 19, 1990] shall have the term “credited service” applied to him or her in the same manner as such term would be applied to a similarly situated correction officer below the rank of captain who is governed by article eleven of this chapter, and who is a participant in the [Tier 2 CO- 20 Plan] pursuant to section four hundred forty-five-a of such article eleven. 9 The Tier 3 CO-20 Plan service retirement eligibility provisions are contained in RSSL § 504-a(c)(1). It states: c. Service retirement benefits. 1. A participant in the twenty-year retirement program: (i) who has completed twenty or more years of credited service; and (ii) who has paid, before the effective date of retirement, all additional member contributions and interest (if any) required by subdivision e of this section; and (iii) who files with the retirement system of which he or she is a member an application for service retirement setting forth at what time he or she desires to be retired; and (iv) who shall be a participant in the twenty-year retirement program at the time so specified for his or her retirement; shall be retired pursuant to the provisions of this section affording early service retirement. The Tier 3 CO-20 Plan pension calculation provisions are contained in RSSL § 504-a(c)(2), which, in relevant part, states: 2. (i) Notwithstanding any other provision of law to the contrary, the early service retirement benefit for participants in the twenty-year retirement program who retire pursuant to paragraph one of this subdivision shall be a pension consisting of: 10 (A) an amount, on account of twenty years of credited service, equal to one-half of his or her final average salary; plus (B) an amount for each additional year of credited service, or fraction thereof, beyond such twenty years of credited service equal to one-sixtieth of the final average salary for such credited service during the period from the completion of twenty years of credited service to the date of retirement. ARGUMENT THE LOWER COURTS ERRED IN DIRECTING NYCERS TO AWARD AN ADDITIONAL PENSION BENEFIT CALCULATION FOR PRIOR NON- CORRECTION CITY SERVICE UNDER THE TIER 3 CO-20 PLAN. A. Standard of Review. NYCERS’ determination that the term “credited service” for Tier 3 CO-20 Plan for members who joined NYCERS after December 19, 1990 is limited to allowable correction service, and that the Plan for these members does not provide an additional pension benefit calculation for non-correction City service must be upheld if it has rational basis. See Wooley v. New York State Dep’t of Correctional Servs., 15 N.Y.3d 275 (2010). Although deference to agencies charged with enforcing a statute is not required when, as here, the issue of one of pure statutory analysis, a court may nevertheless defer to an agency’s definition of a term of art contained in the statute. 11 See Matter of Suffolk Regional Off-Track Betting Corp. v. New York State Racing and Wagering Bd., 11 N.Y.3d 559, 567 (2008). B. The Plain Language of the Statute Requires that Only Tier 3 CO-20 Plan Provisions Apply to Petitioner. RSSL § 504-a(c)(2) is the sole pension calculation provision for the Tier 3 CO-20 Plan. It expressly states that its provision applies to all Plan members “[n]otwithstanding any other provision of law to the contrary. . . .” RSSL 504-a(c)(2)(i). This sole applicable pension calculation provision provides for a 1/2 final average salary benefit for the first 20 years of “credited service” (there is no dispute that “credited service” in this context is allowable correction service for post December 19, 1990 members (12)), and for each additional year, or fraction thereof, of “credited service” beyond those twenty years, an additional benefit of 1/60 of final average salary. Nowhere in this section does the law provide for an additional 75% of 1/60 benefit for prior City employment that is not considered “credited service” in the Tier 3 CO-20 Plan. See RSSL 504-a(c)(2). In granting this relief (5, 16), the Lower Courts awarded a benefit that is not provided for in applicable statute. If the Legislature intends to permit an additional benefit for out-of- title service, it expressly includes such provision in the applicable statute. See e.g. RSSL § 604-a(c)(2)(C) (the Tier 4 Sanitation 20-Year Plan expressly includes a 12 provision to allow an additional calculation for non-uniformed City service). Conversely, where the Legislature intends to exclude a benefit for out-of-title service, such as here, it omits such provisions. See e.g. RSSL § 604-e; RSSL § 604-f (NYCERS members including Tier 4 dispatchers, EMTs, deputy sheriffs, special officers, parking control specialists, school safety agents, campus peace officers and New York city taxi and limousine inspectors also are not given retirement credit or additional benefit calculations for out-of-title service). Where the law provides for an express benefit, an irrefutable inference must be drawn that other benefits were intended to be excluded. See Morales v. Cty. of Nassau, 94 N.Y.2d 218, 224 (1999); McKinney’s Statutes § 240. Because there is no reference to any additional pension benefit for non-correction service in the Tier 3 CO-2O Plan for post-December 19, 1990 members, an irrefutable inference must be drawn that the benefit was intentionally excluded. C. NYCERS’s Determination that Petitioner’s Benefit Calculation is Limited to the Tier 3 CO-20 Plan is Consistent with the Statutory Framework of Public Pension Benefits. NYCERS is a public retirement system governed by applicable statutes of the State of New York. See Administrative Code of the City of New York (“NYC Admin. Code”) Title 13; RSSL Articles 11, 14 and 15. Statutorily- defined requirements for the receipt of retirement benefits, and the amount and type of benefits a member is eligible to receive, differ according to statutory “Tier” 13 and “Plan” status, which are generally determined by date of membership and title. Applying or transferring benefits from one “Tier” or “Plan” to another, unless explicitly authorized under the applicable law, is impermissible. (a) Tier 1 Correction Officers. Tier 1 benefits are provided for individuals who became NYCERS members prior to July 1, 1973, and are set forth exclusively in Title 13 of the NYC Admin. Code. Tier 1 “correction members” have a Plan within Tier 1 entitled “Optional retirement after twenty years of or twenty-five years of allowable service rendered in the uniformed correction force.” NYC Admin. Code § 13-155. A member who elects and meets the requirements of the Plan, which includes completing 20 or 25 years of “service in the correction force” (i.e. allowable correction service), receives a benefit consisting of: (1) an annuity; (2) City- funded pension for increased-take-home-pay; and (3) a City-funded pension based on several other factors. See NYC Admin. Code § 13-155(a)(1), (2) and (3). The pension calculation for this Tier 1 Plan is a percentage of “final compensation” for the first 20 or 25 years of allowable correction service, a lesser percentage for years, or portion thereof, for allowable correction service in excess of the 20 or 25 years, and an additional benefit for non-correction City service. See NYC Admin. Code § 13-155(a)(3)(a), (b) and (c). 14 (b) Tier 2 Correction Officers Generally, an individual who joined NYCERS between July 1, 1973 and July 26, 1976 is a Tier 2 member. The statutory provisions governing Tier 2 are contained in RSSL Article 11. See RSSL §§ 440-451. Article 11, entitled “Limitations to New Entrants,” contains provisions that modify the Tier 1 NYC Admin. Code provisions for members who joined NYCERS on or after July 1, 1973, the effective date of Article 11, and is therefore considered an “overlay” tier providing restrictions to Tier 1 provisions for such members. Prior to the enactment of the Tier 2 “twenty-year retirement program for correction members below the rank of captain” (the Tier 2 CO-20 Plan) and the companion Tier 3 CO-20 Plan at issue here, Tier 2 benefits for correction officers were those set forth for Tier 1 correction officers in NYC Admin. Code § 13-155, but with the limitations provided in Article 11. The limitations for Tier 2 correction officers include 25 years of allowable correction service required to retire with an unreduced benefit (as opposed to 20 in Tier 1), and a three-year “final average salary” salary base, rather than “final compensation” salary base. See RSSL §§ 445 and 443. In Tier 2, all correction officers, whether they have elected to participate in the CO-20 Plan or not, have their retirement allowances calculated under the provisions of NYC Admin. Code § 13-155. 15 (c) Tier 3 Correction Officers. Tier 3, which is governed by the provisions of RSSL Article 14, is a stand-alone retirement structure in that it is neither dependent upon, nor an addition to, a prior tier. See RSSL §§ 500-520. As such, requirements for retirement and benefits in Tier 3 are independent of, and differ from, those in other tiers. See RSSL Articles 11, 14 and 15; NYC Admin. Code, Title 13. Correction officers who became NYCERS members on or after July 27, 1976 are Tier 3 members. With the exception of certain uniformed members including City correction officers, police officers and firefighters, employees who joined a City retirement system on and after September 1, 1983 but before April 1, 2012 are Tier 4 members, whose benefits are governed by RSSL Article 15. City police officers and firefighters appointed from July 1, 2009 to May 31, 2012 became Tier 3 members. As of April 1, 2012, incoming City correction officers, police officers and firefighters, among other uniformed members, are subject to Tier 6 (sometimes referred to as “revised plan members” or “modified Tier 3”), which is an “overlay” tier contained in RSSL Article 14. City police officers and firefighters, however, have separate pension funds and are not NYCERS members. See NYC Admin. Code, Title 13, Subchapter 2. 16 (d) The Tier 2 and Tier 3 CO-20 Plans. The Tier 2 and Tier 3 CO-20 Plans became effective on December 19, 1990. See chapter 936 of the laws of 1990; RSSL § 445-a (Tier 2 CO-20 Plan) and § 504-a (Tier 3 CO-20 Plan). Both CO-20 Plans allowed existing Tier 2 and Tier 3 members to elect their respective CO-20 Plan. While Tier 3 correction officers who became members of NYCERS before December 19, 1990 had the right to elect the Tier 3 CO-20 Plan, those who became correction officers after December 19, 1990 were mandated into the Plan. Although all members of the Tier 3 CO-20 Plan are subject to the same statutory provision regarding the calculation of their service retirement benefits, which provides the correction officer with a retirement benefit of 50% of his or her final average salary after completing 20 years of “credited service” (see RSSL § 504-a(c)), RSSL § 504-a(b)(4) states that the term “credited service” has a different meaning for pre- and post-December 19, 1990 CO-20 Plan members. For post-December 19, 1990 Plan members, NYCERS defined “credited service” as allowable correction service. “Credited service” for pre-December 19, 1990 Plan members is defined in RSSL § 501(c) as service in one of the public retirement systems within the state. 17 (e) NYCERS’s Determination is Consistent with this Statutory Structure and Explicit Tier 3 Applicability Provisions. Tier 3 statutory provisions make plain that its provisions, and no others, apply to Tier 3 members. RSSL § 500(a), the applicability section of Tier 3, explicitly requires that “[i]n the event that there is a conflict between the provisions of this [Tier 3] article and the provisions of any other law or code, the provisions of this article shall govern.” The Tier 3 CO-20 Plan also clearly defines itself as the terms and condition of RSSL § 504-a. See RSSL § 504-a(3). The courts have echoed this tenet and held that “the Legislature clearly evinced an intention to restrict post- . . . 1976 applicants solely to membership under the procedures established in [Tier 3] article 14.” Wertheim v. New York City Teachers’ Ret. Sys., 91 A.D.2d 514 (1st Dep’t 1982). Here, nothing in the legislative history or statutory structure indicates that the Tier 3 CO-20 Plan would entitle petitioner to Tier 2 or Tier 1 benefit calculations (242-77). To the contrary, the Tier 3 CO-20 Plan contains a separate, exclusive and controlling pension calculation provision in RSSL § 504-a(c)(2) making plain that these Plan members, including petitioner, are not entitled to the application of any other benefit calculation provision. In using an inapplicable Tier 1 statute to essentially supersede and obviate the applicable Tier 3 provision, the Lower Courts have impermissibly eviscerated the express controlling language in Tier 3 and directed the payment of a benefit to which petitioner is not entitled. 18 D. NYCERS’s Determination that “Credited Service” is Defined as Allowable Correction Service for Post-December 19, 1990 Plan Members is Rational. Petitioner’s contention, and the Lower Courts’ holding, that he is entitled to the implied application of Tier 2, and thus Tier 1, pension calculation provisions based on a reference to Tier 2 CO-20 Plan for the limited purpose of defining the term “credit service” for post-December 19, 1990 Tier 3 CO-20 Plan members in RSSL § 504-a(b)(4) is misguided. A plain reading of RSSL § 504-a(b)(4) reveals that reference to RSSL § 445-a is limited solely to defining the “term ‘credited service’ ” (italics added) for post-December 19, 1990 Plan members. It does not provide to Tier 3 CO-20 Plan members, nor instruct the application of, any Tier 2 or Tier 1 benefits calculation provision. Although the term “credited service” is not explicitly defined in RSSL § 445-a, it is used as a term of art in the context the 20 years of allowable correction service needed to retire under that Plan. See e.g. RSSL § 445-a(d)(1). Therefore, the Court may defer to NYCERS’s interpretation of “credited service” as statutory term of art. See Suffolk Regional Off-Track Betting Corp. v. New York State Racing and Wagering Bd., 11 N.Y.3d at 567. Moreover, reaching beyond the sole identified purpose of defining a term, and impliedly applying the provisions a referenced pension statute is 19 impermissible. See Roberts v. Murphy, 2 N.Y.3d 641 (2004) (implied application of the provisions of a referenced public pension statute, absent explicit and direct instruction to actually apply the provision of referenced section, is improper). The purpose of adding the defining reference of “credited service” in RSSL § 504-a(b)(4) when the Tier 3 CO-20 Plan was enacted was to limit the definition to allowable correction service for new members. This was done because prior to the enactment of the Tier 3 CO-20 Plan, “credited service” for Tier 3 correction officers was defined more broadly as service in one of the public retirement systems within the state. See RSSL § 501(c). This change, requiring 20 years of allowable correction service, is consistent with all other 20-year City uniformed plans requiring 20 years of uniformed service and the Legislative history of the Tier 2 and 3 CO-20 Plans (240-77). It is unclear how petitioner agrees that “credited service” for post- December 19, 1990 members means allowable correction service for purposes of reaching 20 years of “credited service” in RSSL § 504-a(c)(1), but somehow seeks to expand the definition of the same term using RSSL § 504-a(b)(2). RSSL § 504-a(b)(2) is the sole provision defining “credited service” for post-December 19, 1990 Plan members. Presumably, therefore, petitioner must have gleaned the allowable correction service definition from the reference in RSSL § 504-a(b)(2), as did NYCERS. Thus, there should be no dispute that the 20 term “credited service” would be consistently defined as allowable correction service in both the Tier 2 and Tier 3 CO-20 Plans (for post-December 19, 1990 members). In light of this presumably undisputed definition of “credited service” from the reference in RSSL § 504-a(b)(2), there is no legitimate reason to delve into the Tier 2 and Tier 1 provisions from this reference and seek to selectively expand the definition as it pension calculations. Although there is no dispute that “credited service” for post-December 19, 1990 members, means “allowable correction service” for purposes of reaching 20 years of “credited service” in RSSL § 504-a(c)(1), inexplicably, the Second Department deemed NYCERS’s same interpretation, and consistent use, of that definition in RSSL § 504-a(c)(2) to be “irrational” (284). This is inconsistent with binding precedent and the principles of statutory interpretation. “Whenever a word is used in a statute in one sense and with one meaning, and subsequently the same word is used in a statute on the same subject matter, it is understood as having been used in the same sense.” Benesowitz v. Metro. Life Ins. Co., 8 N.Y.3d 661, 668 (2007). Here, “credited service” for post-December 19, 1990 Plan members is used in the Tier 3 CO-20 Plan in the context of retirement eligibility, pension benefit calculations, member contributions and vesting. See RSSL §§ 504-a(c)(1), 504-a(c)(2), 504-a(d)(3) and 504-a(e)(1). NYCERS, in line with case law 21 requiring the same definition of a term being used in the same sense, applied this term consistently as allowable correction service throughout the Tier 3 CO-20 Plan for post-December 19, 1990 members. Conversely, petitioner, and the Lower Courts improperly propose using a different meaning of the same word in the same section of the law (i.e. “credited service” means allowable correction service for retirement eligibility, member contributions and vesting, but means allowable correction service plus 75% of 1/60 of final average salary for a year of non-correction City service in the context of retirement benefit calculations) when there is no statutory instruction to warrant using inconsistent definitions of “credited service” in the Plan for post- December 19, 1990 members. The Lower Courts’ interpretation renders the statutory language inconsistent, and should not stand. “Statutory phrases [in public pension matters] should not . . . be read in isolation. Effect should be give to all words of a statute, particularly where the relevant language forms part of the integral statutory scheme.” Guido v. New York State Teachers’ Ret. Sys., 94 N.Y.2d 64, 68-69 (1999). 22 CONCLUSION FOR THE REASONS AFORESAID, THE ORDERS APPEALED FROM SHOULD BE REVERSED, WITH COSTS. MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Appellants 100 Church Street, Room 5-147 New York, New York 10007 ksnow@law.nyc.gov (212) 356-4055 By: ________________________ Keith M. Snow PAUL T. REPHEN, KEITH M. SNOW, of Counsel