Rosenthal v. Walsh
| Decision Date | 06 March 1972 |
| Citation | 69 Misc.2d 612,330 N.Y.S.2d 400 |
| Parties | Stephen R. ROSENTHAL, Plaintiff, v. Albert A. WALSH, Administrator, New York City Housing and Development Administration, Defendant. |
| Court | New York City Court |
Norwick, Raggio & Jaffe, by Grier H. Raggio, Jr., New York City, for plaintiff.
J. Lee Rankin, Corp. Counsel, by Francis J. McNamee, New York City, for defendant.
Plaintiff moves for summary judgment in this action to recover as compensation allegedly due to him from his former employer, The Housing and Development Administration ('HDA') the monetary equivalent of 53 days of unused annual leave and 20 days of unused overtime (139 hours) or the total sum of $6,286., less only the sum of $430. paid to him by HDA for five days' annual leave which the latter asserts is payment in full.
Many of the pertinent facts are admitted in the pleadings. Thus it is undisputed that on or about December 13, 1967, plaintiff commenced his employment in HDA and that retroactive to July 1, 1970 his annual salary was $22,450. per annum. As of September 1, 1970, plaintiff had 45 days of annual leave and 468 hours of overtime due him which was earned prior to February 1, 1970. On September 28, 1970, plaintiff's immediate superior approved plaintiff's request for a two-month leave of absence with pay beginning November 2, 1970, with the leave to be charged against his accrued overtime balance. Plaintiff took this leave commencing November 1, 1970, and received pay charged to overtime through January 1, 1971. At his request, the leave was further extended, but only to January 15, 1971.
Significant now are the allegations of Par. 7 of plaintiff's complaint:
HDA admits the last quoted sentence of paragraph 7 only, denying knowledge or information as to the balance.
Plaintiff's resignation letter of January 9 was carefully framed, and is consonant with the allegations of Par. 7 of the complaint. He stated: 'My resignation will be effective upon the expiration of my accrued leave.'
Both parties move for summary judgment on the theory that this dispute as to plaintiff's entitlement presents questions of law only. For the reasons hereinafter set forth, the court disagrees.
At the threshold HDA has invoked the provisions of a Departmental Memorandum dated March 31, 1970, from the HDA Administrator to all employees. Its pertinence to this controversy is not apparent to the court. That order provides that effective April 1, 1970, employees in plaintiff's class cannot accrue any compensatory time (par. 1), but that employees with overtime balances earned Prior to February 1, 1970, 'shall liquidate' the same by May 1, 1971. HDA admits Par. 4 of the complaint that all the overtime claimed herein accrued prior to February 1, 1970, and plaintiff may well argue that liquidation of same is precisely what he sought by his resignation of January 9, 1971.
HDA also invokes Personnel Order No. 76/70 issued by the Mayor on October 13, 1970, which provides with respect to employees in plaintiff's case (Par. 4--b) that upon termination of services they 'may be granted a lump sum payment in lieu of terminal leave . . .' Nothing in that order seems to limit the amount of terminal leave. The provision is phrased...
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