Jesselli v. New York City Employees' Retirement System

Ross, J.

(dissenting). I would reverse Special Term and reinstate the determination of respondent New York City Employees’ Retirement System (NYCERS), which denied a military veteran’s pension to Jacob Jesselli (petitioner), under the- Administrative Code of the City of New York § B3-36.0 (2).

*234Petitioner, an approximately 29-year veteran of the New York City civil service, was suspended by the New York City Department of Transportation (Department) on December 7, 1981, from his position as a motor vehicle operator with that Department, when they filed departmental charges against him. These charges related to the fact that petitioner had been convicted of violations of various New York State criminal laws, as well as violations of various Federal criminal laws; and, that while his State convictions in the District Court of Nassau County and in the New York City Criminal Court located in Queens County, resulted in probation, his Federal conviction resulted in two years’ imprisonment, which he has served. In substance, the petitioner was convicted in both State and Federal courts of having conspired with 16 other individuals to use forged, lost, or stolen airline credit cards to purchase airline tickets which were then sold to customers at a discount from the face value of the ticket. The period covered by the petitioner’s criminal activities extended from about 1975 to about 1979.

Following petitioner’s suspension, a departmental hearing was held concerning the charges on December 17, 1981. At this hearing, the petitioner was represented by counsel, who cross-examined witnesses, and the petitioner testified in his own behalf. After all of the evidence was in, the administrative law judge who presided, filed her report and recommendation. In pertinent part, she found that the petitioner’s participation in the subject criminal activities “unequivocably demonstrate^] this] willingness to engage in fraud and deceit for personal gain”, and she recommended that the petitioner be dismissed from the Department. This recommendation was accepted by the Department and the petitioner was, in fact, dismissed, effective January 5, 1982.

More than seven months after his dismissal from city service, on August 16, 1982, petitioner filed an application for retirement, under Administrative Code § B3-36.0 (2), which provides for retirement benefits to certain qualified military veterans, who served during time of war. In pertinent part, the subject section reads as follows: “2. Notwithstanding any other provisions * * * of any other section of the code to the contrary, a member who is an honorably discharged member of any branch of the armed forces of the United States, having served as such during the time of war and who has attained the age of fifty years, may retire upon his own request upon written application to the board setting forth at what time not less than thirty days subsequent to the execution and filing thereof his desires to be *235retired, provided that such member at the time so specified for his retirement shall have completed at least twenty-five years of allowable service.”

An analysis of Administrative Code § B3-36.0 (2) indicates that for a person to be eligible for benefits under this section they must: (1) be a member of the city retirement system; (2) be honorably discharged from the Armed Forces of the United States; (3) have served in such Armed Forces from which they received their honorable discharge during the time of war; (4) have at least attained the age of 50 years; and, (5) have completed at least 25 years of allowable service with New York City.

A majority of the Court of Appeals of this State, in the case of Matter of Rapp v New York City Employees’ Retirement System (42 NY2d 1) has held that, under the section of the Administrative Code cited supra, a member of the retirement system, who has been honorably discharged from the armed services and who has served as such in time of war and who has attained the age of 50 years or more and has completed 25 years of allowable service is entitled to a pension, even though that retirement system member is a person who has previously been discharged from city service due to misconduct. Incidentally, this majority holding in Rapp, has recently been reaffirmed by a unanimous Court of Appeals, in the case of Matter of Cassiliano v Steisel (64 NY2d 674).

The petitioner in his retirement application, brought under the section cited supra, states, in pertinent part, that he is a member of the retirement system, that he allegedly received an honorable discharge from the Armed Forces of the United States, that he served approximately 105 days in those Armed Forces during the Korean conflict, that he has attained the age of 50 years, and that he has completed at least 25 years of allowable service. In evaluating his application, the respondent, NYCERS, rejected him upon the grounds, inter alia, that the petitioner’s military service during the Korean conflict was not service during “time of war”.

Thereafter, petitioner instituted a CPLR article 78 proceeding to challenge respondent NYCERS’ denial of his application for a military veteran’s retirement, under Administrative Code § B336.0 (2).

In its answer, NYCERS, inter alia, asserted that, in addition to the facts that petitioner’s service in the Korean conflict was not in time of war, and that petitioner would, in any event, not have been eligible for the benefits under the subject section, since, contrary to the allegation in the petition, the petitioner *236did not receive an honorable discharge from the United States Armed Forces. The type of discharge received by the petitioner, as evidenced by a copy of that discharge which appears in the record on appeal, is entitled “a general discharge under honorable conditions”.

A general discharge, under honorable conditions, while not a punitive military discharge, has been characterized as something “less than an honorable discharge” (Unglesby v Zimny, 250 F Supp 714, 716 [US Dist Ct, ND Cal, S Dist]; see also in this connection, Crawford v Davis, 249 F Supp 943, 946, cert denied 383 US 921). The fact that an honorable discharge is not the same thing as a general discharge, under honorable conditions, is illustrated by Administrative Code § B3-36.0 (3), which subdivision provides less retirement benefits to a qualifying veteran, who served with the Armed Forces during time of war and received a general discharge, under honorable conditions.

Special Term (119 Misc 2d 1064) granted the petition on the basis that the respondent NYCERS acted arbitrarily, capriciously and unreasonably, in finding that the Korean conflict was anything but “time of war”; and, therefore, petitioner was entitled to a veteran’s preference pension for service in time of war, pursuant to section B3-36.0 (2).

I disagree. In my view Special Term has abused its discretion and usurped the Legislature’s function.

It is undisputed that for almost four decades, NYCERS, has consistently interpreted the words “time of war” found in Administrative Code § B3-36.0 (2) and (3), to only mean World Wars I and II, which were formally declared wars. I consider it significant that the Legislature has seen fit to leave undisturbed the respondent’s definition of time of war, in respect to these two sections of the Administrative Code.

The legal authority cited by Special Term in support of its position that the words “time of war”, include the Korean conflict are all inapplicable since none of those cases deal with the section of the Administrative Code discussed supra.

Although only the United States Congress has the power to declare war (US Const, art I, § 8 [11]), legal authority in this State supports the conclusion that the Legislature has the power to define the term “time of war” (Matter of Cahan v McNamara, 192 Misc 453, affd 298 NY 713).

Although one would be hard pressed to deny that the Korean conflict was actually a war, since many American lives were lost, the authority to declare this conflict as a “time of war” is not vested in the courts.

*237Accordingly, since the petitioner did not serve in “time of war” and is not an honorably discharged veteran, I would reverse the order and judgment (one paper), Supreme Court, New York County (Israel Rubin, J.), entered December 8, 1983, in this article 78 proceeding, reinstating and confirming the determination of respondent NYCERS, which denied petitioner’s application for military veteran’s benefits, pursuant to Administrative Code § B3-36.0 (2), and dismiss the petition.

Murphy, P. J., and Kupferman, J., concur with Sullivan, J.; Sandler and Ross, JJ., dissent in an opinion by Ross, J.

Judgment, Supreme Court, New York County, entered on December 8, 1983, modified, on the law, without costs and without disbursements, and the Retirement System directed to grant petitioner retirement benefits pursuant to Administrative Code § B3-36.0 (3), and otherwise affirmed.