Angry lawyers suing Cuomo over pension probe

John O'Brien May 19, 2008, 1:40pm


ALBANY, N.Y. (Legal Newsline) - Attorneys are beginning to fight back against New York Attorney General Andrew Cuomo, who is claiming that some lawyers are ripping off the state's public employees pension fund.

In a class-action complaint filed Thursday against Cuomo and several state officials, a pair of law firms write that Cuomo's well-publicized investigation is nothing more than "a politically motivated gambit."

Albany firms Roemer, Wallens & Mineaux and DeGraff, Foy & Kunz filed the action and have organized a website -- Save New York State Retirement Membership Benefits.

"We are here to save the membership benefits that active members of the New York State and Local Employees' Retirement System and current retirees are entitled," the site says. "Annually salaried part-time public employees are being unfairly harassed and illegally deprived of their rightful benefits."

After beginning his probe in February, Cuomo has secured two settlements -- one with Buffalo firm Hodgson Russ and another with Capital Region attorney Maureen Harris.

Cuomo claims some attorneys were put on the payrolls of some school districts and Boards of Cooperative Educational Services (BOCES). He has subpoenaed every state BOCES, as well as 70 upstate attorneys and 20 from the Long Island area.

"In recent months my office has uncovered long-term and systemic fraud on the public pension and benefits systems which have potentially wasted millions of taxpayer dollars," Cuomo said.

"Lawyers representing school districts and BOCES across the state were given public benefits they were not entitled to. Some lawyers have received illegal perks for years and were improperly put on district payrolls. My office will continue to follow this investigation wherever it leads, and we will put an end to this abuse."

Cuomo will be holding hearings in Long Island this week on the matter. Last week he expanded the investigation to include school administrators who may have hired retired officials already receiving pensions who also received paychecks for interim jobs.

The class-action complaint, filed in Albany State Supreme Court, against Cuomo includes Comptroller Thomas DiNapoli as a defendant. He is the administrative head of the ERS, which was implemented in 1920.

"The (ERS) has for decades recognized the right of attorneys and other professionals in private practice to be employed on a part-time basis by departments of municipal government, and the Comptroller of the State of New York has a longstanding practice and recognition of the right of such private practice professionals employed part-time with a participating employer to become a member of and participated in ERS," the complaint says.

"In contravention of this longstanding practice, and the Constitutionally and statutorily protected rights of such private practice professionals to participate in ERS, (Cuomo), in a politically motivated gambit, has, beyond the jurisdictional authority of that office to do so, taken and threatened to take action against such private practice professionals on the legally erroneous premise that private practice professionals cannot receive public retirement benefits."

It adds that DiNapoli is unconstitutionally stripping members of the ERS of their rights without due process.

"These actions are contrary to the law, threaten to, and in some cases already have, improperly deprived or divested individuals of contract and property rights recognized and protected by the New York State Constitution and statute, and trammels the rights granted individuals by the Fifth and Fourteenth Amendments to the United States Constitution," the complaint says.

From Legal Newsline: Reach John O'Brien via e-mail at

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