(dissenting). I respectfully dissent.
Petitioner clearly satisfied her burden of going forward under Retirement and Social Security Law § 803 (b) (3) (see, Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662). Petitioner established that she neither expressly declined membership nor participated in a procedure designed to elicit a decision regarding same. When she received the April 13, 1973 form letter from respondent Shenendehowa Central School District (hereinafter the District), the only enclosures contained therein were multiple copies of her salary agreement. While the letter stated that a physical examination form and an application for membership in respondent New York State and Local Employees’ Retirement System were also enclosed, petitioner testified that there were no such enclosures. Petitioner had no prior familiarity with the Retirement System, and was employed in a relatively new position which did not enjoy the same benefits as other employees, e.g., she was not represented by a bargaining unit. She explained that as the letter was a form letter, a fact clearly borne out by an examination of the exhibit, she assumed that certain parts thereof applied to her and some did not. Since the retirement forms were not included, she testified that she assumed that they did not pertain to her. As soon as she learned of her eligibility to join the Retirement System in 1974, she did so.
The District offered no evidence that the enclosures were in fact sent to petitioner, that she expressly declined membership, or that she otherwise participated in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision as to whether to join the Retirement System.
In overruling the determination of the Hearing Officer, which held that petitioner established her entitlement to retroactive benefits, respondent Comptroller found that this determination was “incorrect and erroneous as a matter of law”. Specifically, the Comptroller found that by virtue of the language contained in the form letter sent to petitioner, she “was afforded a reasonable opportunity to join the Retirement System”. This finding paraphrases, with significant omissions, the applicable provision of Retirement and Social Security Law § 803 (b) (3) (iii), *754which requires proof that the applicant did not “participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system”. Also, in adopting the Hearing Officer’s findings of fact, the Comptroller accepted petitioner’s testimony (indeed, there was no proof to the contrary) that no application form was enclosed with the letter.
The question then reduces to whether a reasonable person would interpret the language of the form letter, in light of the absence of the application, as constituting “an explanation or request requiring a formal decision by him or her to join a public retirement system” (Retirement and Social Security Law § 803 [b] [3] [iii]). I disagree with the majority’s assumption that “a reasonable person reading [the letter’s] contents would have been alerted to the opportunity to join the Retirement System” as a satisfaction of the statutory criterion. In this regard, a similar situation was presented in Matter of Kaufman v Board of Educ., decided with Matter of Scanlan v Buffalo Pub. School Sys. (90 NY2d 662, supra), where the school district relied on the presence of questions contained on an annual employment form completed by the teachers asking, “ ‘Are you at present a member of the New York State Teacher’s Retirement System?”’ (id., at 679). While surely this question could be construed as alerting a reader to the opportunity to join the Retirement System, the Court of Appeals noted, “Significantly, nothing on these forms explains [the Retirement System] or invites the teacher to join. The documents do not even reference other materials that the substitute teacher could consult regarding [the Retirement System]. Rather than providing information to the teacher, they seek answers from the teacher to payroll-related questions” (id., at 679 [emphasis in original]). The Court further cited the fact that the teacher in question had no prior experience with the Retirement System, a factor which prompted a different result in Matter of Clark v Board of Educ. (90 NY2d 662) also decided therewith.
Reliance upon our decision in Matter of Plasberg v State of New York (245 AD2d 681), fails to answer the question in issue. The school district in Matter of Plasberg (supra) presented evidence that the employee was orally advised of his right to join the Retirement System. Here, the very issue is whether the form letter, absent the enclosures, constituted sufficient advice of such right. I conclude that the uncontroverted facts fail to support the Comptroller’s conclusion and I would find that the determination is not based upon substantial evidence and must be annulled.
*755Adjudged that the determination is confirmed, without costs, and petition dismissed.