
    In the Matter of Thelma Tomasino, Appellant, v New York State Employees’ Retirement System, Respondent.
    Decided September 14, 1982
    
      APPEARANCES OF COUNSEL
    
      Ralph A. Siciliano for appellant.
    
      Robert Abrams, Attorney-General (William J. Kogan of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs. The determination of the State Comptroller denying petitioner’s application for an annulment of decedent’s statutorily prescribed retirement option and for a designation óf herself as beneficiary under another option was not arbitrary or capricious. Ortelere v Teachers’ Retirement Bd. of City of N. Y. (25 NY2d 196) does not require a different result. In Ortelere, we held that a mentally incompetent’s affirmative choice of a retirement option could be set aside under the circumstances of that case. Decedent in the present case, however, made no affirmative choice of a retirement option. This lack of choice may not now be set aside (see McCarthy v Levitt, 59 AD2d 952, mot for lv to app den 43 NY2d 647).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Gabrielli.  