
    Riva D. Sherman, Appellant, v New York State Teachers’ Retirement System et al., Respondents.
    Argued June 5, 1980;
    decided June 26, 1980
    APPEARANCES OF COUNSEL
    
      Joel Field for appellant.
    
      Robert Abrams, Attorney-General (Carl E. Stephan and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Section 512 (subd b, par 2) of the Education Law provides that a death benefit is payable upon the death of a member of the New York State Teachers’ Retirement System who dies prior to the effective date of retirement if "in service” at the time of death. Respondents interpreted the "in service” prerequisite as not met by a teacher who, following leave of absence from the school system without pay, had not yet resumed actual teaching duties.

Based on that interpretation of the statute, respondents denied petitioner’s application for death benefits with respect to her daughter who, after nearly 20 months of parental leave terminating on June 30, 1977, was re-engaged for the school year 1977-1978 and included in the salary schedule adopted by the board of education for that year, but died on August 2, 1977 before the opening of school in September. We cannot conclude that this determination was affected by an error of law or was arbitrary or capricious. Nothing in the statute compels the interpretation that because the teacher had returned to the school system and been restored to the yearly payroll she must be deemed to be "in service”.

Chief Judge Cooke and Judges Jasen, Gabkielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.  