Panel Finds Rescission of Lawyer's Pension in Error

, New York Law Journal

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An appeals court held that the state comptroller's office erred by rescinding the membership of a Buffalo attorney in the state's pension system for his part-time work for a school district between 1969-2006.

The Appellate Division, Third Department panel held that Phillip Brothman adequately demonstrated that he was employed by the Evans-Brant Central School District in Erie County for purposes of his entitlement to benefits under the New York State and Local Employees' Retirement System.

The judges cited various factors for reaching that conclusion in Brothman v. DiNapoli, 517032, including Brothman's receipt of biweekly pay checks from the district, the withholding of federal and state income taxes, his having to report to the district's superintendent, the requirement that he attend all school board meetings and his formal reappointment and taking of an oath of office each year.

Citing Mowry v. DiNapoli, 111 AD3d 1117 (2013), Presiding Justice Karen Peters wrote that the "over-all control" of a lawyer's work activities by school district leaders is sufficient to establish the existence of a work relationship between a local government entity and an attorney.

Peters added in her Feb. 20 ruling that state Comptroller Thomas DiNapoli's office relied on testimony from two in-house retirement experts to make its decision annulling Brothman's pension, through each admitted they had not spoken to Brothman nor his supervisors in the school district.

"Indeed, the Retirement System failed to provide testimony from anyone with direct knowledge regarding petitioner's engagement with the school district" when rescinding Brothman's decision, Peters wrote.

Justices Leslie Stein, Robert Rose and John Egan Jr. joined in the determination.

David Luntz of Hinman Straub in Albany represented Brothman, who retired at the end of last year as of counsel at Harris Beach in Buffalo.

Assistant Attorney General Kate Nepveu represented the retirement system.

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