Matter of Albert D’Agostino v Thomas DiNapoli, as State Comptroller

Petitioner in this Article 78 case is an attorney who worked part time as counsel for several municipalities and school districts in addition to maintaining a private law practice. In 2000, he retired from municipal service and began receiving public retirement funds. In April of 2008, the State Comptroller changed the regulations for New York State and Local Employees’ Retirement System regarding the classification of professional municipal service providers as employees or independent contractors. Under the new regulations, petitioner’s enrollments in the Retirement System were invalidated and he was told he needed to return over $600,000 of retirement benefits that he had received.

Petitioner then commenced an Article 78 appeal seeking immediate reinstatement to the Retirement System alleging improper retroactive application of the new regulations and violation of his due process rights. The Supreme Court granted his petition and dismissed the determination to terminate petitioner’s pension benefits and membership in the Retirement System and ordered respondents to pay accrued arrears in petitioner’s pension. Petitioner then appealed the decision because all of his grounds were not granted relief. Since an appellant must be aggrieved in order to file an appeal, the Court ruled that the appeal must be dismissed. Petitioner was granted the ultimate relief that he sought and therefore cannot be aggrieved.

Accordingly, the Supreme Court dismissed the appeal, without costs.

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