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Judge: Reinstate attorney to state pension system

A private attorney whose state pension was revoked last year after the state comptroller's office determined he didn't qualify for the benefit must be reinstated to the state retirement system, a State Supreme Court justice has ruled.

The decision also orders the state to restore the $106,702 annual pension Albert D'Agostino had been collecting, saying he had been deprived of his constitutional rights to a hearing before the revocation.

The Aug. 20 decision states that D'Agostino, of Garden City, was also not given notice of or a basis for the termination.

The judge's decision states that the pension benefits can be taken away again if, after a hearing, the state determines that his membership in the retirement system is improper. A state spokesman said the case against D'Agostino is continuing.

The decision says the state has 30 days in which to refund that money to D'Agostino, along with payments for the months he missed.

State Comptroller Thomas DiNapoli's office has revoked or rescinded the pensions of 62 professionals statewide, most of them attorneys. This is the first time a judge has overturned one of those revocations.

DiNapoli's spokeswoman, Emily DeSantis, said the ruling does not hinder the office's authority to revoke a pension if the recipient is deemed to be an independent contractor. "Rather, the decision says there should be more due process before an individual's pension is taken away," she said.

The office will not appeal the decision.

D'Agostino said Tuesday "this decision validates the faith I've expressed and have had in our judiciary system."

When he retired in 2000, D'Agostino had amassed 28 years of service credit in the pension system for the years he was hired to represent Nassau County, three school districts, the Town of Hempstead and the Village of Valley Stream.

A Newsday story in April reported that D'Agostino had been improperly listed as an employee on those payrolls because he had worked as an independent contractor and maintained a private law practice.

According to the decision by acting State Supreme Court Justice Gerald W. Connolly, officials with DiNapoli's office suspended D'Agostino's pension in an April 23, 2008, letter. Connolly wrote that he agreed with D'Agostino that the determination was based on a "preliminary review" of records by employees with no expertise in the retirement system or D'Agostino's work history.

In a June 2008 letter, the state said D'Agostino was registered as an employee when he was actually an independent contractor and gave him 15 days to submit information supporting his defense. The comptroller's office made its official determination in an August 2008 letter, but provided no basis for departing from the office's 1999 ruling that retroactively gave D'Agostino 21 years in the retirement system, the decision stated.

D'Agostino, now 65, filed a lawsuit in October arguing that the pension revocation and order to pay back $605,874.79 was "arbitrary, capricious and a clear abuse of discretion."

The comptroller's office "will continue to take appropriate action against individuals who are determined to be independent contractors and not employees," DeSantis said. "In light of the court's ruling, our office will make sure these individuals are afforded sufficient due process before their benefits are revoked."

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