This appeal arises out of a dispute between plaintiffs, attorneys claiming entitlement to public pension benefits for their work as counsel to various municipalities while at the same time maintaining private law practices, and defendants, the entities investigating the propriety of those claims. In April 2008, defendant Comptroller announced new regulations for defendant New York State and Local Employees' Retirement System that define how local governments and school districts should classify professional service providers. Notably, the regulations now provide that if any professional individual's employer "has a contract, retainer or other agreement to provide professional services to [a municipality], it shall be presumed that the individual is an independent contractor and not an employee" of the municipality (2 NYCRR 315.3 [c]  [iii]). As a result of the application of these new regulations, plaintiffs' memberships in the Retirement System were invalidated.
Plaintiffs thereafter commenced the instant action. In their first amended complaint, plaintiffs set forth numerous causes of action against defendant Attorney General and defendant Office of the New York State Attorney General (hereinafter collectively referred to as the Attorney General), the Comptroller and defendant Office of the Comptroller of the State of New York (hereinafter collectively referred to as the Comptroller), and the Retirement System seeking, among other things, (1) declaratory judgments determining that defendants have no authority to investigate, reduce or terminate plaintiffs' retirement benefits and that the procedures used by defendants are contrary to
Supreme Court denied plaintiffs' motion for temporary injunctive relief, denied plaintiffs' cross motion for leave to amend their complaint a second time and essentially granted defendants' cross motion dismissing causes of action 1 through 16 in the amended complaint. However, while dismissing the injunctive relief sought in the second and sixth causes of action, the court found that sufficient facts were alleged to illustrate due process violations and, as such, partially converted said causes of action into a proceeding pursuant to CPLR article 78; the court also granted leave to serve an amended petition to add other individuals who it is alleged have had their Retirement System benefits adversely affected without due process. Thus, the only surviving portions of plaintiffs' first amended complaint are two causes of action seeking injunctive relief in their new form as a proceeding pursuant to CPLR article 78. Plaintiffs Nathaniel W. Swergold and William M. Cullen (hereinafter collectively referred to as plaintiffs) now appeal, as limited by their brief, from so much of the order as dismissed their claims brought against the Comptroller and the Retirement System (hereinafter collectively referred to as defendants).
In light of a recent order of Supreme Court issued subsequent to the filing of this appeal (see Hoover v DiNapoli, Sup Ct, Albany County, Sept. 22, 2009, Connolly, J., index No. 2414-09), the Deputy Comptroller for the Division of Retirement Services in the Comptroller's office submitted an affidavit to this Court on behalf of defendants attesting that they are revoking their prior determinations issued to plaintiffs and that "[n]o credits will be revoked unless and until plaintiffs have an adequate opportunity
Any other due process challenge, as well as plaintiffs' arguments that the unilateral revocation of their membership in the Retirement System is otherwise unconstitutional, are premature, given that their credits have been restored pending hearings. Should defendants ultimately conclude that plaintiffs were properly enrolled in the Retirement System, plaintiffs will not be aggrieved. As it is not the proper exercise of our review power to offer advisory opinions, plaintiffs' first, fifth and ninth causes of action—all expressly premised on a revocation or diminution of plaintiffs' retirement benefits—must be dismissed as they state claims that are not yet ripe for judicial review (see American Ins. Assn. v Chu, 64 N.Y.2d 379, 385-386 , appeal dismissed and cert denied 474 U.S. 803 ; New York Pub. Interest Research Group v Carey, 42 N.Y.2d 527, 529-530 ; Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of State of N.Y., ___ AD3d ___, ___, 2009 NY Slip Op 10016, *2 ). Likewise, those challenges to the validity of the new rules insofar as they are applied to determine that plaintiffs are independent contractors instead of employees (plaintiffs' tenth and eleventh causes of action) or applied to diminish earned credits (twelfth, thirteenth and sixteenth causes of action), as well as their fifteenth cause of action protesting the retroactive application of the new rules to plaintiffs, are not ripe for judicial review inasmuch as the result and propriety of application of the new rules to these plaintiffs is not yet finally determined (see Saratoga County Chamber of Commerce v Pataki, 275 A.D.2d 145, 158-159 ; see also Matter of Deem v New York State & Local Retirement Sys., 44 A.D.3d 1235, 1235 , lv denied 9 N.Y.3d 818 ).
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied defendants' cross motion with respect to the second and sixth causes of action and converted said claims into a proceeding pursuant to CPLR article 78; said causes of action dismissed; and, as so modified, affirmed.