Mancuso v. Regan , 190 A.D.2d 948 ( 1993 )

— 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 request for service credits for his retirement record.

Petitioner was the attorney-of-record for the Syracuse Housing Authority in its eviction cases. He had no office of his own and used available office space at the Authority’s facility once or twice a month to sign "notices of precepts” in eviction proceedings. He also appeared in court with the head of the Authority’s collections department. He was not provided with his own secretarial staff and maintained his own private law practice. He received a yearly salary of $13,000, paid in 12 equal installments, from which no payroll deductions were taken. He received no employee fringe benefits except for health insurance coverage. He had no supervisor, no performance evaluations or formal job description. He was not on the Authority’s payroll and was paid by its accounts payable department.

Respondent Comptroller is vested with the exclusive authority to determine applications for all forms of retirement benefits (Retirement and Social Security Law § 74 [b]). Service credit is available only to employees, not independent contractors (see, Matter of Ginocchio v New York State Employees’ Retirement Sys., 136 AD2d 789). There is substantial evidence in the record in this case to support the Comptroller’s conclusion that petitioner was an independent contractor for the Authority and that he was therefore not entitled to the service credit that he requested (see, Matter of Brosnahan v New York State Employees’ Retirement Sys., 174 AD2d 954, lv denied 78 NY2d 858; Matter of Barbiero v New York State Employees’ Retirement Sys., 92 AD2d 1078).

Weiss, P. J., Mikoll, Yesawich Jr., Crew III and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.