Coates v. City of New York
| Decision Date | 07 July 1975 |
| Citation | 370 N.Y.S.2d 628,49 A.D.2d 565 |
| Parties | , 90 L.R.R.M. (BNA) 2522 Charles COATES, Respondent, v. The CITY OF NEW YORK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
W. Bernard Richland, New York City (Murray L. Lewis and L. Kevin Sheridan, New York City, of counsel), for appellant.
Morris Weissberg, New York City (Morris Weissberg and Robert J. Krengel, New York City, of counsel), for respondent.
Before RABIN, Acting P.J., and HOPKINS, LATHAM, CHRIST and SHAPIRO, JJ.
MEMORANDUM BY THE COURT.
In an action by a former employee of defendant to recover monetary benefits allegedly earned, defendant appeals, as limited by its brief, from so much of an order-judgment of the Supreme Court, Queens County, dated June 18, 1974, as, on reargument, (1) granted plaintiff's motion for summary judgment, awarding him $3,406.53 for terminal leave, accrued vacation time and unscheduled holiday work periods, and (2) denied defendant's cross motion for summary judgment.
Order-judgment modified, on the law, (1) by deleting from the second decretal paragraph thereof the words 'the cash equivalent of accrued vacation time, with pay, terminal leave with pay, and' and (2) by deleting from the third decretal paragraph '$3,406.53' and substituting therefor '$1,283.62'. As so modified, order-judgment affirmed insofar as appealed from, without costs.
The facts are not in dispute. Plaintiff, a sanitation worker in the Department of Sanitation of the City of New York from March 4, 1963 until January 4, 1973, was injured in the line of duty on November 12, 1967. After being out of work as a result of his injuries for approximately six months, he returned to work, but was assigned to light duty. He continued in the employ of the Department until he was involuntarily retired for accident disability, effective January 4, 1973. He did not apply for such retirement. Instead, application therefor was made by the commissioner of defendant's Sanitation Department pursuant to section B3--40.0 of the Administrative Code of the City of New York.
Because plaintiff was notified of his retirement just prior to its effective date, he had no opportunity to use the time owed to him as vacation time, terminal leave and unscheduled holiday work periods provided for in the governing collective bargaining agreement. No provision had been made in that agreement for cash payments of such benefits upon retirement of a Sanitation Department employee.
Defendant opposes payment to plaintiff on the ground that it would violate the prohibition against gifts of public funds found in section 1 of article VIII of the State Constitution. Defendant notes also that section 92 of the General Municipal Law, which authorizes cash payments to a former public employee under certain circumstances, is not applicable, because there is absent a specific provision in the agreement for such payments.
Special Term, however, shared plaintiff's position...
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