(dissenting). I respectfully dissent. It is settled law that “[t]he Nonimpairment Clause of the NY Constitution was adopted in order to prevent the reduction of an individual’s retirement benefits after he or she had joined a retirement system operated by the State or one of its civil divisions” (Lake v Regan, 135 AD2d 312, 314, appeal dismissed 72 NY2d 840, lv denied 72 NY2d 807). In the instant case, once petitioner elected to join the retirement plan prior to March 31, 1972 pursuant to Retirement and Social Security Law § 381-b, his individual retirement benefits contained in that plan could not be reduced (see, Lake v Regan, supra, at 314). Specifically, one of the benefits in that plan permitted him to remain in service until December 31st of the year in which he reached age 60 provided he attained a specified rank by *239December 31st of the year in which he reached age 55. Some 16 years later, in 1988, the Legislature amended Retirement and Social Security Law § 381-b (e) (see, L 1988, ch 759) mandating retirement at age 57 for all members of the State Police except those who held one of the specified ranks on or before August 31, 1988. Those individuals were permitted to work until age 60. Petitioner did not hold one of the specified ranks on August 31, 1988; however, in 1994, at age 55, he held the rank of Assistant Deputy Superintendent, a rank he maintained until his forced retirement on December 30, 1996.
The majority allows this retroactive reduction of petitioner’s pension benefits by employing the rationale applied by the Court of Appeals in Cook v City of Binghamton (48 NY2d 323) and this Court in Lake v Regan (supra), holding that the Non-impairment Clause does not include the right to remain in public employment nor prohibit the State from establishing mandatory retirement ages (see, Cook v City of Binghamton, supra, at 332; Lake v Regan, supra, at 314). In my view, the decisions in Cook and Lake are distinguishable because, unlike the instant case, they involved plaintiffs on disability retirement who were not asserting violations of the Nonimpairment Clause to prevent changes in retirement benefits under plans they initially joined. Instead, they were seeking to extend this constitutional protection in order to prevent the reduction of disability income previously paid to them by operation of General Municipal Law § 207-a.* That statute, as we noted in Lake, “was enacted as a matter of public policy and it can be amended without violating the Nonimpairment Clause of the NY Constitution” (Lake v Regan, supra, at 314; see, Cook v City of Binghamton, supra, at 332).
In the instant case, we have a petitioner who worked for many years with the understanding that, if he fulfilled certain conditions, he would have the potential to retire at age 60. Obviously, he also knew that if he became separated from service prior to satisfying the conditions existing at the time of his entrance into plan membership, as for example through disability, he would only be entitled to receive those retirement benefits accrued up to that point in time (see, Lake v Regan, 135 AD2d 312, 315, supra), as the plan he joined did not provide for anything more. However, when petitioner entered into plan membership, he did not contemplate that any pen*240sion entitlement then in existence would be unilaterally stripped away by a change in his retirement plan.
In my view, the option to remain in service until age 60 was an explicit pension benefit, a clear “monetary advantage” (Brown v New York State Teachers Retirement Sys., 25 AD2d 344, 345, affd on opn below 19 NY2d 779) under the newly enacted plan which became fixed when he opted to join (see, Birnbaum v New York State Teachers’ Retirement Sys., 5 NY2d 1, 9; Public Empls. Fedn. v Cuomo, 62 NY2d 450, 460). Like the salary increases which could not be excluded from the determination of a prior member’s final average salary in Kleinfeldt v New York City Employees’ Retirement Sys. (36 NY2d 95), the option to remain in service until age 60 became an integral part of the formula for the computation of petitioner’s retirement allowance which could not be impaired nor its value diminished by the retroactive application of the 1988 amendment. When petitioner attained the age of 55 and held the eligible position of Assistant Deputy Superintendent, he fulfilled the conditions existing at the time of his entrance into plan membership under Retirement and Social Security Law § 381-b (former [e]) and, therefore, had a constitutionally protected contractual right to opt to continue to work until age 60.
In my opinion, the application of the 1988 amendment to petitioner constituted an unlawful unilateral reduction of his individual retirement benefits in violation of the Nonimpairment Clause. Accordingly, I would grant the petition, direct respondents to reinstate petitioner to the rank of Assistant Deputy Superintendent, restore all job and service credits from August 9, 1997, reimburse petitioner for all lost salary less pension payments received, and enjoin respondents from involuntarily retiring petitioner from service until December 31, 1999.
Mikoll, Peters and Carpinello, JJ., concur with Mercure, J. ; Cardona, P. J., dissents in a separate opinion.
Ordered that the judgment is affirmed, without costs.
We note that Lake also involved the interplay of a newly enacted “duty disability retirement” statute (see, Retirement and Social Security Law § 363-c [added by L 1984, ch 661, § 1]).