The opinion
Murphy, P. J.
(dissenting). The individual plaintiffs in this action are seven physicians employed by the New York City Health and Hospitals Corporation. Four of their number have applied for membership in the New York City Employees’ Retirement System (NYCERS), while the remaining three are already members and have applied to transfer within the system so as to receive greater benefits. Plaintiffs’ membership and benefits applications were filed in December 1981 but were neither approved nor disapproved by NYCERS. NYCERS’ inaction persisted until January 1983, when plaintiffs commenced the present lawsuit against NYCERS and two of its officers. Plaintiffs sought a judgment declaring that they were eligible for NYCERS membership and directing NYCERS to grant their pending applications. They alleged in their first cause of action that NYCERS’ failure to admit them to the retirement system, or to afford them benefits, was in violation of section B3-3.0 of the Administrative Code of the City of New York (recodified as § 13-104) which provides that all persons employed in "city-service” are eligible for NYCERS membership. In their second and third causes, plaintiffs alleged that their decisions to become city employees were materially affected by NYCERS’ actions and representations *396 leading them reasonably to believe that they would be considered eligible for retirement system membership and benefits. Plaintiffs maintained, therefore, that NYCERS should be equitably estopped from denying their applications. In their fourth and final cause, plaintiffs urged that NYCERS had arbitrarily and capriciously treated them differently from other employees eligible for NYCERS membership, and that such disparate and irrational treatment was prohibited by the Equal Protection and Due Process Clauses of the New York and United States Constitutions.
Defendants answered the above-described complaint by alleging that only full-time per annum employees were eligible for NYCERS membership and that plaintiffs who were either part-time or sessional employees had no right to be included in the class of NYCERS eligibles.
In June and August 1984, respectively, plaintiffs and defendants moved and cross-moved for summary judgment. Special Term denied plaintiffs’ motion in its entirety, but granted defendants’ cross motion to the extent of dismissing plaintiffs’ first and fourth causes. A trial was directed as to plaintiffs’ second and third causes predicated on estoppel concerning which Special Term observed there were disputed issues of fact. The present appeal by plaintiffs and cross appeal by defendants ensued.
While I would agree with Special Term and my colleagues in the majority that triable issues are raised in connection with plaintiffs’ estoppel claims, resort to the equitable theory of estoppel in this matter seems to me singularly unnecessary and inappropriate. This is because the statute upon which plaintiffs rely in their first cause of action clearly entitles them to the relief they seek as a matter of law.
So far as is here relevant, Administrative Code § B3-3.0 (recodified as § 13-104) provides:
"Except as otherwise provided in section B3-48.0 of the code, the membership of the retirement system shall consist of:
"1. All persons in city-service, as defined in this title”. "City-service” is defined in Administrative Code § B3-1.0 (3) (a) (recodified as § 13-101 [3] [a]) as "service, whether appointive or elective, as an officer or employee of the city or state of New York, of any agency thereof and of any court, so far as such service is paid for by the city”.
It is not disputed that plaintiffs are city employees paid for their services by the city. As such, it would seem that they *397 must be deemed persons in "city-service”. Indeed, as Special Term observed, plaintiffs "certainly are engaged in city-service under section B3-1.0 (3).” The conclusion would appear unavoidable that plaintiffs, as persons in city-service, are eligible for NYCERS membership pursuant to Administrative Code § B3-3.0 (recodified as § 13-104). Special Term, however, whose lead this court now follows, managed to conclude differently. Noting that the statutorily defined class of NYCERS eligibles is broad, Special Term opined that NYCERS had authority to exclude "certain categories of persons”. Nowhere in its opinion does Special Term point to any legislative authority for NYCERS to exclude any "category of persons” from those otherwise entitled to participate in the retirement system. Rather the power of the agency to effect such exclusions is presented as self-evident: "There is no dispute that certain categories of persons, such as subcontractors and other independent contractors, have consistently been excluded from membership in NYCERS — even though they fall within the definition of 'city service’. Even plaintiffs do not argue that these exclusions are improper. It is thus impliedly conceded that 'the absence of ambiguity’ facially in section B3-1.0 (3) is not conclusive here”. Having thus purportedly demonstrated the propriety of administratively drawn exclusions from the statutorily defined class of NYCERS eligibles, Special Term went on to consider whether part-time employees constituted a category of persons permissibly excluded from NYCERS membership. Although the inquiry was framed by Special Term as one respecting legislative intention, apart from the statutory language there is little or no indication as to what that intention may have been; as Special Term acknowledged, no legislative history is available concerning the relevant Administrative Code provisions. Undaunted, Special Term turned instead to an examination of agency intent and practice. The court ventured that NYCERS, since its inception in 1920, had consistently excluded part-time employees from membership, and that the Legislature which was presumptively aware of this practice never amended the subject Administrative Code section to provide specifically that part-time employees were eligible to join NYCERS. From this the court concluded that NYCERS’ exclusion of part-time employees did not conflict with any legislative purpose and was a proper exercise of agency power.
The plain meaning rule, forbidding judicial forays into statutory construction when the language of an enactment is *398 clear, has been long with us and often relied on. (See, e.g., McCluskey v Cromwell, 11 NY 593, 601-602 ; Meltzer v Koenigsberg, 302 NY 523, 525 ; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 304 ; Matter of Barton v Lavine, 38 NY2d 785, 787 ; Matter of Shea v Falk, 10 AD2d 142 , affd 8 NY2d 1071 .) Its salutary purpose is, of course, to prevent courts from prohibitively intruding upon the legislative function. (See, e.g., McCluskey v Cromwell, supra, at 601-602; Matter of Shea v Falk, 10 AD2d, at 144 , supra.) Surely, so fundamental a precept should not be lost sight of. Unfortunately, it has been in this case.
If, as seems clear, plaintiffs are in fact municipal employees paid by the city, they are persons in "city-service” as that term is defined in Administrative Code § B3-1.0 (3) (a) (recodified as § 13-101 [3] [a]) and, therefore, eligible for NYCERS membership and benefits pursuant to Administrative Code § B3-3.0 (recodified as § 13-104). The language of the Administrative Code which Special Term conceded is "facially unambiguous” simply does not permit any other conclusion. It must be presumed that had the Legislature meant to except part-time employees from NYCERS eligibility, it would have so provided. Indeed, Administrative Code § B3-3.0 (recodified as § 13-104) starts out, "Except as otherwise provided in section B3-48.0 of the code, the membership of the retirement system shall consist of’ (emphasis added). Nowhere among the exceptions listed in Administrative Code § B3-48.0 (recodified as § 13-179) is there one sanctioning the exclusion of part-time employees.
NYCERS, apparently unphased by the absence of any express legislative authority, maintains that it is nevertheless empowered to carve out substantial exclusions from the statutorily constituted membership class. This ignores, however, that the statute does not permit NYCERS any discretion in this area. To the contrary, Administrative Code § B3-3.0 (recodified as § 13-104) states unequivocally that, apart from the above noted exceptions "the membership of the retirement system shall consist of * * * [a]ll persons in city-service” (emphasis added). If the class of NYCERS eligibles is to be recomposed to limit membership to those who are employed by the city on a full-time per annum basis, it would seem that the statute which at present plainly embraces a much wider class of eligibles must be amended. Amending the law is, however, the province of the Legislature, not the courts, and *399 certainly not the agencies charged with administering the law as it is.
Given the absolute clarity of the statutory provisions at issue, I see no reason whatsoever to explore the Legislature’s intentions further. In any case, the inquiry undertaken by Special Term was not so much concerned with the Legislature’s intent as it was with the intent and practice of the administering agency. In essence, Special Term purported to establish the propriety of administratively excluding certain categories of persons from the statutorily defined class of NYCERS eligibles, by resort to agency precedent. The issue, however, is not whether the agency has acted consistently, but whether it has acted in accordance with the governing statute. Where, as here, the claimed agency practice runs contrary to the unambiguous wording of a statutory provision, it is not, no matter how long-standing, entitled to any interpretive weight. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 ; Matter of Country-Wide Brokerage v Harnett, 58 AD2d 517 ; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 128 [b]; § 129 [b].)
Reliance on the doctrine of practical construction is, however, completely inappropriate in this case for another reason: NYCERS has never had any consistent practice or coherent policy categorically excluding from the retirement system any persons otherwise entitled to membership. Special Term’s assertion that independent contractors have been consistently excluded from NYCERS "even though they fall within the definition of 'city service’ ” betrays a rather basic misunderstanding. Independent contractors have, of course, never been permitted to join NYCERS. This is, however, not attributable, as Special Term would have it, to agency practice but to simple observance of the statutory requirements. Independent contractors are not city employees, hence, they are not in "city-service” as that term is defined in Administrative Code § B3-1.0 (3) (a) and, therefore, are not eligible for NYCERS membership. The example then by which Special Term sought to establish the permissibility of administrative exclusions from the statutorily defined class of NYCERS eligibles is fundamentally flawed. Yet, even if the premise from which it proceeded, i.e., that independent contractors fall within the code definition of "city-service”, were valid, the example’s relevance to the present matter would be hard to discern. The propriety of one administratively drawn exclusion does not establish the propriety of such exclusions generally. Plaintiffs *400 are not independent contractors. Thus, even if the ineligibility of independent contractors for NYCERS membership did result from the agency’s exclusionary practice, this would hardly explain the exclusion of plaintiffs.
What then is the long-standing agency practice pursuant to which NYCERS would bar plaintiffs from membership? NYCERS urges that since the inception of the retirement system in 1920, part-time and non-per annum employees such as plaintiffs have been consistently excluded from NYCERS membership. As evidence of such a practice, NYCERS relies first upon an opinion of the Corporation Counsel dating from 1936, some 16 years after the system’s establishment. The opinion concerned the application of an attorney for additional retirement credit based upon services rendered by him as counsel to the Bar Association in an ambulance chasing investigation and, subsequently, as counsel to a legislative investigating committee. The Corporation Counsel advised quite simply that as to the services performed for the Bar Association, the attorney was not entitled to credit since he had not been retained by the city. Credit was recommended, however, for the services rendered the legislative committee in deference to the State Comptroller, who had indicated that such services would be considered city-service. In the course of reaching this determination, which itself indicates absolutely nothing as to agency practice respecting part-time and non-per annum employees, the Corporation Counsel set forth certain general guidelines to aid the Board of Estimate (the predecessor to the present NYCERS board of trustees) in determining what service could be classified as employment qualifying for NYCERS credit. Among those guidelines was one which provided: "4. Such employment should be of a more or less continuous character and should take up substantially all of the time of the employee. The employee should be required to report and keep office hours at a public office and to perform his work subject to the direct supervision and control of public officials. In other words, the services must be of the character of those embodied in a master and servant relationship and not in the nature of those performed by an independent contractor.” Clearly, this guideline, volunteered by the Corporation Counsel in the. context of an opinion in which it was to have no application, neither reflected any existing practice by NYCERS nor settled its future policy concerning the admission of part-time employees to the retirement system. Indeed, in 1937, less than one year after the opinion’s issuance, the *401 Board of Estimate once again sought the Corporation Counsel’s guidance. This time, however, the inquiry did concern the apparently still open question of whether part-time employees were entitled to retirement system service credit. While cautioning that his opinion was not conclusive, the Corporation Counsel opined that the subject employee’s services which were less than full time should not be credited.
The 1936 and 1937 opinions of the Corporation Counsel notwithstanding, NYCERS did not promulgate any rule or regulation concerning even arguably the eligibility of part-time non-per annum employees to join the system until some 10 years had passed. Thus, in 1947 NYCERS adopted rule 11 (f) which states: "(f) no person who is paid other than a regular per annum salary, who renders less than full time service not [sic] required to keep the regular office hours of the agency in which he renders service, is not required to report at a given time or place and is not subject to the discipline of the agency shall, by such service, acquire any right or benefit in the Retirement System.” NYCERS claims that this rule simply reflected existing practice. Assuming that this is the case, it merely begs the question as to what the practice was. The rule itself is hardly a model of clarity since the various disqualifying factors listed may be understood either as stating alternative grounds for exclusion, or conditions whose existence together would require exclusion, no one factor being sufficient. Indeed, to the extent that the rule reflected existing NYCERS practice it would appear that the latter interpretation of the rule is the correct one. As representative Board of Estimate minutes from 1930 and 1940 contained in the record indisputably show, both non-per annum and part-time employees were routinely admitted to the retirement system in the years preceding rule 11 (f)’s adoption. And as Board of Estimate minutes from 1950, 1960 and 1965 show, this continued to be the NYCERS practice long after rule 11 (f) was adopted.
It should be noted that at the same time rule 11 (f) was adopted, the Board of Estimate also adopted rule 24 which states:
"Provided that not more than one year shall be allowed for all allowable paid-for service in any calendar year and not less than one year for 250 or more days of paid-for service (Code B3-5.0.b);
"(a) Credit of one-hundredth of a year shall be allowed for *402 each 3 days, or other equivalent service, paid for on a per annum basis.
"(b) Credit of one-hundredth of a year shall be allowed for each 2 days, or other equivalent service, paid for on a basis other than per annum.
"(c) Service paid for by the hour, session, night, etc. and equated on a basis for other than that of an eight-hour day shall be noted in the report to the Board recommending service allowance.”
Although this rule concerns the computation of service credit, rather than retirement system eligibility criteria, there would obviously be little need to compute credit for non-per annum service (see, subd [b]) or "Service paid for by the hour, session, night, etc. and equated on a basis for other than that of an eight-hour day” (subd [c]), if non-per annum and part-time employees were to be excluded from NYCERS pursuant to the contemporaneously promulgated rule 11 (f).
As the above noted Board of Estimate minutes would seem to indicate, part-time and non-per annum city employees were routinely admitted to NYCERS following the adoption of rule 11 (f). This practice was apparently unobjectionable to the Corporation Counsel who, in 1952, issued an opinion concerning whether a part-time and sessional doctor employed by the city would be entitled to service credit for the time he spent in the military (opn No. 102565). Although the doctor had not worked a sufficient number of sessions in any one given year, either before or after his military service to entitle him to a full year’s credit, the Corporation Counsel nevertheless took it for granted that the doctor was eligible to join the retirement system, stating with regard to him, "It is my opinion that * * * a per session employee who is a member of a retirement system [here NYCERS] should receive full service credit for the period of his military service” (emphasis added).
There is absolutely no evidence contained in the record indicating that prior to 1970, rule 11 (f) was understood or applied to exclude part-time and non-per annum employees from NYCERS. Rather, it would appear, as Arthur Van Houten, the chief administrator of NYCERS between 1968 and 1975, explains in his affidavit, that until the early 1970’s, rule 11 (f) was construed and implemented as a measure to insure that independent contractors, having no continuing "master servant” employment relation with the city, were not admitted to the retirement system. Although beginning in *403 1970, NYCERS memoranda and correspondence indicate that some attempt was being made to exclude part-time and sessional employees from the system, these documents can be of little real comfort to defendants. What they seem to show is, that to the extent that there was any existing policy respecting the exclusion of part timers and per session employees, it had been unevenly enforced and was not even known of in many sectors of the retirement system. In any case, assuming that the 1970’s witnessed some attempt by NYCERS to bar part-time and non-per annum employees from the system, NYCERS concedes that doctors, the very group whose entitlement is here at issue, were for some unexplained reason exempted from exclusion.
Evidently, during the early 1970’s, the NYCERS board of trustees remained uncertain as to the propriety of excluding part timers, for in 1974 it once again requested advice from the Corporation Counsel. The Corporation Counsel responded by undertaking a review of its 1936 and 1937 opinions and rule 11 (f) from which it concluded that part timers were not entitled to NYCERS membership. There is, however, precious little in the record to indicate that the Corporation Counsel’s advice was translated into any firm and consistently enforced agency policy. In fact, plaintiffs Seligman, Prensky and Kligman were all either admitted to NYCERS, or allowed to remain members, subsequent to the 1974 Corporation Counsel opinion, and the record contains persuasive evidence indicating that at least as late as 1978, NYCERS, with full knowledge of an employee’s part-time status, permitted membership in the system.
NYCERS’ uncertainty as to what policy to follow concerning part-time employees apparently persisted, for in 1980, the NYCERS board of trustees appointed a subcommittee to study the matter. After extended deliberation, the subcommittee remained deadlocked, and in June 1981, submitted a memorandum presenting the full board with two alternatives:
"1) To determine that the pertinent provisions of the Administrative Code and Rules of the System exclude part-time employees from membership and to accept no new membership applications from part-time employees; or
"2) To interpret the pertinent Administrative Code provisions as permitting part-time employees to join NYCERS, and to accept part-time applicants as members.”
Obviously, as of mid-1981, NYCERS not only had no well- *404 defined policy or practice concerning the membership of part timers, but was sharply divided as to what course ought to be pursued prospectively.
Still undecided, the board of trustees in October 1981 again sought the Corporation Counsel’s opinion. The Corporation Counsel, citing his 1936, 1937 and 1974 opinions, advised that NYCERS did not have the power to direct that part-time employees should be eligible for membership. Somewhat inconsistently, the Corporation Counsel also advised that it would be reasonable for all part-time employees already admitted to the system to continue as members.
Thus, on November 6, 1981, some 61 years after the establishment of the retirement system, NYCERS, for the first time, resolved that it did not have authority to admit part timers to membership, but that it would, nevertheless, permit all part timers who had been erroneously admitted, to remain within the system. The resolution concluded by directing the Subcommittee on Part-Time Employees to recommend criteria to distinguish part-time from full-time employees, which criteria would be employed in conjunction with administrative procedures to be adopted by the NYCERS Executive Director, to assure that part-time employees were not admitted to the retirement system. In October 1982, the NYCERS board, expressly conceding that it had never formulated any rules or regulations respecting part timers, finally resolved to amend its rules and regulations to provide that only those employed at least 35 hours per week would be eligible to become NYCERS members.
If the November 1981 and October 1982 NYCERS board resolutions demonstrate anything, it is that NYCERS was not only entirely unclear as to what its policy on the admission of part timers should be, but that it had not even the most rudimentary elements of a uniformly enforceable policy in place. As the resolutions acknowledge, more than 60 years after the inception of the retirement system, NYCERS had yet to establish standards for determining who would be considered a part-time employee, and had no commonly recognized administrative procedures to effect the exclusion of part timers from the system. In the absence of any policy or rules respecting the eligibility of part timers to join the system, it is hardly surprising that prior to 1981 many part timers were, in fact, admitted. Although NYCERS now attempts to explain this circumstance as the result of "clerical errors and incomplete or inaccurate information furnished to NYCERS by *405 employing agencies” (Nov. 6, 1981 resolution), it would seem clear that given the manifest indecision of the NYCERS board and the conceded lack of any pertinent rules or regulations, "errors”, if they may be called that, were inevitable.
In my view, the record in this proceeding demonstrates conclusively that NYCERS has never had anything remotely resembling a consistent policy or practice of excluding part-time employees from the retirement system. At best, it can perhaps be said that NYCERS has sporadically made halfhearted and indecisive attempts to exclude some part timers, but that is not a sufficient basis to invoke the doctrine of practical construction. When agency practice is as uneven as it is in the present case, it simply does not permit any inference concerning legislative intent.
Given the evident uncertainty within NYCERS as to what its practice was and policy should be, it is truly remarkable that Special Term attached any significance to the fact that the Legislature never amended the Administrative Code to specify that part timers were eligible to join NYCERS. The Legislature cannot reasonably be charged with knowledge of an administrative "practice” which was apparently not followed or known of by many in the agency itself. Further, even if it had come to the Legislature’s attention that it was the occasional practice of NYCERS to exclude part timers, there is no reason to suppose that the statute would or should have been amended in response; as the statute already extended eligibility to all city employees, there was plainly no need for any additional provision respecting part timers.
This, moreover, is not a case in which agency practice, even if it were more definite, would be entitled to any special deference. The question of how the NYCERS membership class should be composed is not one whose answer requires any special practical expertise; it does not involve an intimate understanding of agency operations or the evaluation of complex factual data (see, Kurcsics v Merchants Mut. Ins. Co., supra, 49 NY2d, at 459 ). As NYCERS itself recognized in its November 1981 resolution, eligibility for membership in the retirement system is a matter governed completely by statute and depends entirely upon how the statute is read. Thus, NYCERS, apparently understanding that it possessed no special competence in statutory construction, turned to the Corporation Counsel for advice and was told, "it is the intent of the provisions of the Administrative Code governing membership in NYCERS to exclude part-time employees from mem *406 bership and accordingly, that the Board of Trustees does not have the power by resolution, amendment of the Rules and Regulations or otherwise, to direct that part-time employees shall be eligible for NYCERS membership” (Nov. 6, 1981 Resolution). Although NYCERS quite reasonably relied on the advice of counsel in what was essentially a question of statutory interpretation, that does not mean that the advice given was correct or is entitled to any special deference; it is simply the opinion of counsel and nothing more. That opinion, in my view, is quite simply wrong, as it flies in the face of the statute’s clear wording. Nowhere in the statute is there even the slightest indication that the Legislature intended to exclude part-time employees from NYCERS membership.
Undoubtedly, the exclusion of part timers from NYCERS will save the city money. The meaning of a statute, however, does not vary to accomplish fiscal savings. If the city wishes, it may, of course, ask the Legislature to amend the relevant Administrative Code provisions, but in the meantime the statute must be read as it is by this court and be implemented as it is by the administering agency. This, in my opinion, requires that part-time employees be permitted to join and participate in the retirement system.
As a closing addendum, I would note that even if agency practice, such as it was in this case, were at all relevant to the meaning of the statute, it would still have been error for Special Term to grant defendant’s motion for summary judgment dismissing plaintiffs’ first cause of action. If plaintiffs have not made a showing entitling them to prevail on a summary judgment motion, they have, at a minimum, raised a factual issue as to whether NYCERS had any practice of excluding part-time employees from membership. The Board of Estimate minutes included in the record show, at the very least, that until 1965, part timers and non-per annum employees were admitted to the retirement system, and were credited for their service pursuant to rule 24 (see, supra). In addition, the affidavit of former NYCERS Administrator Arthur Van Houten states quite plainly that part timers were routinely permitted to join the retirement system through the early 1970’s. And, although there is some evidence of NYCERS’ exclusionary efforts thereafter, it is conceded that there was a recognized exception in favor of part-time doctors and dentists. Moreover, NYCERS’ November 1981 and October 1982 board resolutions amount to virtual admissions that through the early 1980’s there was sharp disagreement and, indeed, *407 confusion, within NYCERS as to what its policy respecting part timers should be; in fact, the most basic elements of a policy effecting the exclusion of part-time employees, namely, criteria to distinguish part- from full-time employees, had yet to be established.
If this evidence does not demonstrate conclusively, as I believe it should, that NYCERS, for more than 60 years after its institution, had no established policy dictating the exclusion of part timers, surely it is sufficient to raise a triable issue of fact. As it is axiomatic that the existence of a triable issue renders summary judgment inappropriate (see, e.g., Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ), it would seem plain that defendants’ cross motion for summary judgment as to plaintiffs’ first cause of action should have been denied.
Having made these observations concerning the impropriety of Special Term’s grant of defendants’ cross motion for summary judgment as to plaintiffs’ first cause, I would hasten to reiterate that this case should not be decided based upon what may or may not have been the practice of NYCERS. NYCERS practice, whatever it was, has no relevance to the resolution of this matter. The Legislature in enacting Administrative Code § B3-3.0 (recodified as § 13-104) indicated quite clearly that it was performing the critical task of defining who was to be eligible for NYCERS membership. No discretion was left the NYCERS board to exclude any "category of persons” from the statutorily defined class.
Accordingly, I dissent and would modify the appealed order to grant plaintiffs’ motion for summary judgment on their first cause of action.
Asch and Wallach, JJ., concur with Sullivan, J.; Murphy, P. J., dissents in an opinion.
Order and judgment (one paper), Supreme Court, New York County, entered on October 3, 1985, modified, to strike therefrom the provisions dismissing the first and fourth causes of action and, as so modified, affirmed, without costs and without disbursements.