ยง 402. Recovery of disability beneficiaries. a. Once each year the
comptroller may, and, upon his application, shall require a retiree on a
disability allowance, under the minimum age or period for service
retirement elected by him, to undergo a medical examination. Such
examination shall be made at the place of residence of such beneficiary,
or at any other place mutually agreed upon by the comptroller and such
beneficiary. In the event that any such disability beneficiary shall
refuse to submit to a medical examination, the pension portion of his
retirement allowance, including the
pension-providing-for-increased-take-home-pay, shall be discontinued
until his withdrawal of such refusal. If such refusal shall continue for
one year, all his rights in and to his pension shall be forfeited.
b. The pension, including the
pension-providing-for-increased-take-home-pay, of a disability
beneficiary shall be reduced in the event that any such disability
beneficiary is engaged in a gainful occupation paying more than the
difference between his retirement allowance, as it would be without
optional modification and if not reduced by the actuarial equivalent of
any outstanding loan and if not increased by the actuarial equivalent of
any additional contributions, and his final salary. Such reductions
shall be to a sum which, when added to an annuity, as so computed, plus
the amount so earnable by him, shall equal his final salary. If his
earning capacity thereafter changes, his pension may be further altered.
Any such altered pension shall not exceed:
1. The pension, including the
pension-providing-for-increased-take-home-pay, originally granted to
such beneficiary, nor
2. An amount which, when added to an annuity, as so computed, plus the
sum earned by him or her, shall equal his or her final salary.
In the case where an optional benefit has been selected, such
reduction shall be the same as the reduction would have been without
optional modification. Where such reduction is greater than the pension,
including the pension-providing-for-increased-take-home-pay, payable
under the option selected, the excess may be paid by the pensioner into
the funds of the police and fire retirement system, in which case the
benefit due under the option shall be paid as if no reduction had
occurred. If such excess is not paid by the pensioner, the benefit
otherwise due under the option shall be reduced by the actuarial
equivalent of such excess. In no event shall the payment to the funds be
greater than the difference between the pension, including the
pension-providing-for-increased-take-home-pay, without optional
modification and the pension, including the
pension-providing-for-increased-take-home-pay, under the option
selected. The pension, including the
pension-providing-for-increased-take-home-pay of a disability pensioner,
shall not be reduced after he or she has attained the mandatory
retirement age applicable to him or her or shall have attained the age
or performed the period of service specified by applicable law for
eligibility for a service retirement benefit.
c. In the event that the comptroller shall determine that a disability
beneficiary is able to engage in a gainful occupation, he or she shall,
if such beneficiary so requires, certify the name of such beneficiary to
the state civil service department or appropriate civil service
commission. The state civil service department or such municipal
commission shall place the name of such beneficiary, as a preferred
eligible, on the appropriate eligible lists prepared by it for positions
for which such beneficiary is stated to be qualified in a salary grade
not exceeding that from which he or she was last retired. If any such
beneficiary shall be offered a position as a result of the placing of
his or her name on any such civil service list, the amount of his or her
disability pension, including the
pension-providing-for-increased-take-home-pay, shall be reduced. Such
reduction shall be to an amount which, when added to the amount earned
or earnable by him or her in such position, shall not exceed his or her
final salary. A disability beneficiary restored to active service shall
not be eligible to membership in the police and fire retirement system
so long as he or she receives any pension, including the
pension-providing-for-increased-take-home-pay.
d. In the event that a disability beneficiary is restored to active
service of an employer, at a salary equal to or in excess of his or her
final salary, his or her retirement allowance shall cease. Such person
thereupon again shall become a member of the police and fire retirement
system. He or she thereafter shall contribute to the police and fire
retirement system in the same manner as and at the same rate that he or
she paid prior to his or her disability retirement. The total service
credit, to which he or she was entitled at the time of such retirement,
again shall be credited to him or her. Upon his or her subsequent
retirement, he or she shall be credited, in addition, with all member
service earned by him or her subsequent to his or her last restoration
to membership.
e. In the event that a disability retiree is restored to active
service of an employer, at a salary less than his or her final salary
but equal to or in excess of the current minimum salary for the position
from which he or she was last retired for disability, such person, if he
or she so elects, shall again become a member of the police and fire
retirement system and his or her retirement allowance shall cease. He or
she thereafter shall contribute to the police and fire retirement system
in the same manner as and at the same rate that he or she paid prior to
his or her disability retirement. The total service credit, to which he
or she was entitled at the time of such retirement, again shall be
credited to him or her. Upon his subsequent retirement, he or she shall
be credited, in addition, with all member service earned by him or her
subsequent to his or her last restoration to membership.
f. In the case of members who have changed plans prior to the
effective date of this subdivision, the plan providing the earliest
minimum age or period of service shall be applied.
f-1. Notwithstanding any other provision of this section or any other
provision of law, a retiree of any New York state police or fire
retirement system on a disability allowance who returns to gainful
employment as an elected public official shall continue to receive the
full amount of his or her retirement allowance, including the
pension-providing-for-increased-take-home-pay.
g. Notwithstanding any other provision of this article, the term
"final salary", as used in this section, shall mean the maximum salary
or compensation which the retired member currently would be receiving in
the position next higher from which he was last retired for disability,
if he had not been so retired, provided, however, that if the position
from which he was so retired has been abolished, the comptroller, upon
the basis of salary or compensation currently paid by the retired
member's last employer to persons in similar or comparable positions,
shall determine, for the purposes of this section, the maximum amount of
salary or compensation which such retired member currently would be
receiving in such position.
Structure New York Laws