
    In the Matter of Ursula O'Marah, Appellant, v. Arthur Levitt, as Comptroller of the State of New York, Respondent.
    Argued November 13, 1974;
    decided December 20, 1974.
    
      
      Algird F. White, Jr. for appellant.
    The two-year period within which an application for an accidental disability retirement allowance may be filed in compliance with the Retirement and Social Security Law (§ 63, subd. a, par. 3) should be considered to run from the date a leave of absence expires and not from the date the leave commenced. (People ex rel. Davie v. Lynch, 164 App. Div. 517; Matter of Weiher v. Greene, 239 App. Div. 652; Thompson v. Young, 63 F. Supp. 890.)
    
      Louis J. Lefkowitz, Attorney-General (John Q. Driscoll and Ruth Kessler Toch of counsel), for respondent.
    I. Retirement and Social Security Law (§ 63, subd. a, par. 3) requires that an application for accidental disability retirement be filed, in the case of a member no longer in service, within two years of the date service was first discontinued. Appellant’s service was first discontinued at the commencement of her leave of absence. (Matter of Silson v. New York State Employees’ Retirement System, 208 Misc. 59, 286 App. Div. 936; Matter of Clark v. Levitt, 35 A D 2d 404; Matter of Weiher v. Greene, 239 App. Div. 652.) II. Appellant has failed to demonstrate a clear legal right to the relief requested. (Matter of Marsh [Catherwood], 13 N Y 2d 235; Matter of Colgate-Palmolive-Peet Co. v. Joseph, 308 N. Y. 333; Red Hook Cold Stor. Co. v. Department of Labor of State of N. Y., 295 N. Y. 1; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104.)
   Memorandum. Order reversed and the judgment of Special Term reinstated, with costs to appellant.

The question presented is whether under the provisions of subdivision a of section 63 of the Retirement and Social Security Law, the period during which petitioner could make application for an accidental disability retirement allowance began at the commencement or termination of her unpaid leave of absence. This in turn involves the construction to be given the words first discontinued from service ” as they appear in the statute,

Subdivision a of section 63 provides, in pertinent part:

££ a. A member shall he entitled to an accidental disability retirement allowance if, at the time application therefor is filed, he is:

1. Under age sixty, and

“ 2. Physically or mentally incapacitated for performance of duty as the natural and proximate result of an accident not caused by his own willful negligence sustained in such service and while actually a member of the retirement system, and

“ 3. Actually in service upon which his membership is based.

However, in a case where a member is discontinued from service subsequent to the accident, either voluntarily or involuntarily, application may be made not later than two years after the member is first discontinued from service ”.

Petitioner was injured on April 17, 1967 in the course of her employment and incapacitated from further performance of her duties. After her accumulated sick leave was exhausted, petitioner applied for and was granted leave without pay. Such leave commenced August 31,1967, and expired October 18, 1968. On October 11, 1969, petitioner applied for accidental disability retirement allowance. The application was rejected as not timely filed within two years of discontinuance from State service.

In reversing a judgment in favor of petitioner, the Appellate Division (two Justices dissenting) concluded that the term “ ‘ discontinued from service ’ ” refers to “ the cessation of remunerative employment ”. Consequently, August 31, 1967 was the crucial date when the period of limitation commenced.

The Rules for the Classified Service (4 NYCRR Part 5) provides for leaves of absence in section 5.2. Under such rules, a permanent employee ‘£ may, in the discretion of the appointing authority, be granted a leave of absence from his position, without pay, for a period not exceeding two years ” (4 NYCRR 5.2 [b]). Such leave may he extended for an additional period not to exceed two years with the approval of the Civil Service Commission. Section 5.3 of the rules deals with resignations which are required to be in writing. If a resignation is submitted while an employee is on leave of absence without pay, and no effective date is specified in the resignation,1 ‘ such resignation, for the purpose of determining eligibility for reinstatement, shall be deemed to be effective as of the date of the commencement of such absence ” (4 NYCRR 5.3 [b]; emphasis added). Similarly, an absence without leave or explanation for a period of 10 work days is deemed to constitute a resignation effective on the date of the commencement of such absence for . the purpose of determining eligibility for reinstatement (4 NYCRR 5.3 [d]).. Reinstatement within one year, without examination, is permitted a permanent employee (4 NYCRR 5.4).

It should be noted that, in the sections of the rules cited, the provision as to when the leave commences is for the purpose of calculating the period for permissible reinstatement without re-examination.

However, the purpose of a statute providing for accidental disability retirement is to assure the availability of such benefits to an employee who is permanently incapacitated as a result of injuries received in the line of duty. The statute should be so construed as to carry out the desired objective if fairly and reasonably possible.

The fact that permission for leave without pay must be sought by the employee, the granting of which is in the discretion of the appointing authority, establishes a recognized relationship. That such leave may be extended even beyond the two-year period for good cause shown is a recognition of the existence of a continuing relationship, at least for the period allowed. Imposing a two-year Statute of Limitations to make application should run from the time that the relationship is terminated. This would not impose an undue burden on the system for there is always a fixed date when the leave expires, and the two-year period would commence on such date. The alternative is for the employee, of necessity, to make a premature application for reinstatement to toll the statute, when, in fact, the disability is permanent.

There are, of course, other sections of the Civil Service Law where a leave of absence is not deemed to affect the continuous service of the employee (Civil Service Law, § 130, subd. 3, par. [e]) or his eligibility for promotion (Civil Service Law, § 52, subd. 3). Those provisions have a different purpose and are not to be equated with subdivision a of section 63 of the Retirement and Social Security Law. They only serve to emphasize the desirability of focusing upon the termination of a leave of absence for the purpose of a disability retirement allowance.

Jasen, J.

(dissenting). I would affirm the order of the Appellate Division.

The two-year time limitation on the filing of disability retirement applications was added to section 79 of the Civil Service Law (the predecessor of Retirement and Social Security Law, § 63) by chapter 926 of the Laws of 1956. This amendment was the direct result of the decision in Matter of Silson v. New York State Employees’ Retirement System (208 Misc. 59, affd. without opn. 286 App. Div. 936).

In Matter of Silson, the employee sustained an injury in the course of his employment on August 31, 1950, which rendered him unable to continue work. Utilizing accrued leave credits, he continued in full pay status until April 26,1951. Thereafter, he received workmen’s compensation benefits until August 12, 1953, on which date such payments ceased and the moneys . received on account of such benefits were repaid from the proceeds of a judgment collected from the City of New York in a third-party action. On January 13, 1954, nearly three and one-half years following his disability, he applied for accidental disability retirement. His application was disapproved ón tile ground that he had not been actually in * * * service ” since April 26, 1951. In a proceeding he commenced pursuant to article 78 of the former Civil Practice Act to compel the. acceptance of his application, Special Term, in granting his petition, held that the statute contained no express time limit on such applications and that the phrase actually in * * * service ” related to the date of the injury, not the date of application. In so holding, Justice McAfeeb stated: “ If the Legislature had intended to provide a limitation of time within which the injured employee should be required to apply for such disability benefits, the Legislature would have expressly stated such limitation and undoubtedly would have provided a reasonable time following the date of the accident within which the application would be required to be filed.” (208 Misc., at p. 62.)

Thereafter, the Legislature amended subdivision a of section 63 of the Retirement and Social Security Law, expressly imposing a time limitation of two years “ after the member is first discontinued from service The clear purpose wás to protegí the retirement system from stale claims, and against the back ground of Matter of Silson, the logical conclusion is that the Legislature intended to tie this time limitation to the occurrence " of a disabling injury.

Likewise, ill my opinion the reliance upon the provisions of the Civil Service Law cited by Justice Kane dissenting below (42 A D 2d 879, 881) is misplaced. Subdivision 3 of section 52 of the Civil Service Law states in essence that a leave of absence-will not affect an employee’s eligibility for promotion. Subdivision 2 of section 80 provides that a leave of absence is not to be considered an interruption of continuous service for purposes of establishing seniority rights where an abolition or reduction of positions takes place. Section 130 (subd. 3,. par, [e]) declares that an employee who has had a leave of absence at some time shall be deemed to have been in continuous service for purposes of calculation of salary. It is apparent that these provisions have as their goal the protection of an employee who, having been on a leave of absence, has returned or desires'-to return to work. The time limitation of section 63 of the Retirement and Social Security Law has as its purpose not the protection of the employee, but the protection of the retirement system. Its sole purpose is to bar stale claims such as the application that was permitted in Matter of Silson (supra). One can envision a situation where an employee, although returning to work for short periods of time, is given extended leaves of absehcé -(- based on his work-related injury out of compassion felt for him by his supervisors. Several years later this person could seek disability retirement relating back to the original injury, creating significant problems of medical proof and the like.

Accordingly, I would hold that the two-year time limitation on applications for disability retirement contained in subdivision a of section 63 of the Retirement and Social Security Law begins to run from the date an employee ceases to be continued in full pay status, and not from the date his leave of absence terminates.

Judges Gabbielli, Jones, "Wachtleb, Rabin and Stevens concur in memorandum; Judge Jasen dissents and votes to affirm in a separate opinion in which Chief Judge Bbeitel concurs.

Order reversed, etc. 
      
       Cf. Memorandum of Civil Service Employees Association in support of this amendment, 1956 N. Y. State Legis. Annual 71, 72.
     