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Employee received all retirement and salary benefits upon ordered military service

By Harvey Randall, Esq.

Employee received all retirement and salary benefits upon ordered military service
Deem, v New York State and Local Retirement System, 44 A.D.3d 1235, App Div, 3d Dept [Motion for leave to appeal denied, Court of Appeal, Slip Opinion No: 2008 NYSlipOp 61017]

In January 2004, Michael A. Deem, an assistant county attorney in the City of White Plains, Westchester County, was ordered to active military duty in his capacity as a United States Marine Corps reservist. He served until January 19, 2005 and returned to work on April 4, 2005.

Claiming that he was denied retirement service credit for all time served while on active duty and that he was entitled to full pay and benefits during the time period between his discharge from military service and his return to work on April 4, 2005, Deem sued the New York State Employees? Retirement System and the City of White Plains. Supreme Court dismissed his petition and Deem appealed.

As to Deem?s claim that he did not receive the retirement credit to which he was entitled, the Appellate Division said that ?it appears that the Retirement System has indeed credited [Deem?s] retirement account for the period in question? and, therefore, as to the Retirement System, Deem?s appeal was moot.

As to Deem?s claims against the City, the court said that he had ?received all benefits that he was entitled to under applicable laws during and after his ordered military duty.? The decision indicates that Deem received a salary differential from Westchester County during his entire period of ?[ordered] active military duty? (as provided by Westchester County Act No. 224-2001 §§1 and 5) and he then received 73 days of requested leave following his discharge.

Although Deem claimed that he was entitled to be paid his full salary, as well as other benefits, during his 73-day period of leave, the Appellate Division said that Deem cited no local, state or federal law, or decisional authority to support his position and dismissed his appeal.

The text of the decision is posted at

http://nypublicpersonnellawarchives.blogspot.com/2008/05/employee-received-all-retirement-and.html

Full post as published by New York Public Personnel Law on May 05, 2008 (boomark / email).