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 for service retirement.
To be eligible for the retirement incentive program (L 1990, ch 935), an employee must have been in active service on December 19, 1990. As petitioner failed to meet the statutory definition of active service, respondent Comptroller properly denied petitioner’s application for service retirement. Furthermore, petitioner’s retroactive reinstatement to the payroll under the circumstances presented in the record did not bring him within the statutory definition of active service. On December 19, 1990, petitioner was on leave without pay and he concededly performed no work.
Mikoll, J. P., Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.