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Attorneys file suit vs. pension revocations

BY ELIZABETH MOORE | elizabeth.moore@newsday.com

May 16, 2008

Four private attorneys who were expecting or receiving state pensions say Attorney General Andrew Cuomo and state Comptroller Thomas DiNapoli's moves to bar them from the state retirement system are a "politically motivated gambit" that violates their constitutional rights.

Nathaniel M. Swergold of Woodbury, Terrence E. Smolev of Jericho, John B. Hogan of Binghamton and Paul A. Martineau of Armonk are named in the suit filed in State Supreme Court in Albany yesterday. But their suit seeks to represent all working and retired enrollees in the pension system who have rendered "part-time, annually salaried service," including elected officials, appointed officers and judges.

As a result of ongoing probes by Cuomo, DiNapoli and other agencies into the public pensions received by private attorneys and others hired by governments, such people "are being unfairly harassed and illegally deprived of their rightful benefits," says a Web site set up by Albany attorney James Roemer Jr., the lead counsel in the case.

Roemer's complaint argues that credit in the system, once granted, can't be taken away. It contends that the government, not the lawyers, decided what their service credit should be. And it included as exhibits contradictory letters and publications to point out the "rampant confusion the retirement system has created" on its rules.

Swergold, an attorney for Hempstead's Sanitary District No. 1 and enrolled in the state retirement system since 1972, received a letter May 5 saying "it was determined you were registered as an employee when in fact you were an independent contractor." The next day the sanitary district was directed to change its records, and his membership in the retirement system was nullified, the suit says.

Smolev, longtime attorney for the North Merrick schools, was a member of the state retirement system from 1975 to 1998, according to the complaint, applying for retirement in 2005. Smolev, who was served last month with a subpoena, has since received two drafts of an "Assurance of Discontinuance" from Cuomo's office. "They wanted $30,000 as a penalty, in addition to giving back his pension and paying back what he was already receiving," said Smolev's private attorney, Melvyn Roth. "He decided he didn't want to settle this, because he did nothing wrong."

"We're ... quite confident that our investigation is not only legally well founded but in the public interest," Cuomo spokesman John Milgrim said yesterday.

DiNapoli spokeswoman Emily DeSantis said the comptroller's authority over pensions "will not be threatened by lawyers filing lawsuits."