
    Aaron Nussbaum, on Behalf of Himself and All Others Similarly Situated, Appellant, v New York City Employees’ Retirement System, Respondent.
    Argued May 4, 1981;
    decided June 9, 1981
    
      APPEARANCES OF COUNSEL
    
      Aaron Nussbaum, pro se, and Murray Rudman for Aaron Nussbaum, appellant.
    
      Allen G. Schwartz, Corporation Counsel (Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant, in accordance with this memorandum, and, as so modified, affirmed.

For the reasons stated by the Appellate Division, plaintiff was not unconstitutionally denied vested pension rights by legislation which created an additional, optional pension plan. Plaintiff could have remained in the existing plan without any of his rights being impaired. It was his decision not to do so that caused the alleged change in his rights. Instead of dismissing the complaint in this declaratory judgment action, however, the Appellate Division should have declared the rights of the parties. Accordingly, the order of that court should be modified to declare the challenged legislation constitutional.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order modified, etc.  