Opinion
Decided September 14, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Ralph A. Siciliano for appellant.
Robert Abrams, Attorney-General ( William J. Kogan of counsel), for respondent.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 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 of herself as beneficiary under another option was not arbitrary or capricious. Ortelere v Teachers' Retirement Bd. of City of N.Y. ( 25 N.Y.2d 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 A.D.2d 952, mot for lv to app den 43 N.Y.2d 647).
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Judge GABRIELLI.