Rubinstein v. Simpson

• Decision Date: 25 March 1985
• Citation: 109 A.D.2d 885,487 N.Y.S.2d 77
• Parties: In the Matter of David RUBINSTEIN, Respondent, v. John D. SIMPSON, as President, New York City Transit Authority, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 77

487 N.Y.S.2d 77

109 A.D.2d 885

In the Matter of David RUBINSTEIN, Respondent, v. John D. SIMPSON, as President, New York City Transit Authority, et al., Appellants.

Supreme Court, Appellate Division Second Department.

March 25, 1985.

Richard K. Bernard, Brooklyn (Steve S. Efron, Brooklyn, of counsel), for appellants.

Before THOMPSON, J.P., and BRACKEN, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination, dated February 22, 1982, which terminated petitioner's employment, the appeals are from (1) so much of a judgment of the Supreme Court, Kings County, dated January 5, 1983, as ordered the New York City Transit Authority to pay to petitioner in one lump sum the amount due for petitioner's accrued unused vacation time and (2) so much of an amended judgment of the same court, dated March 22, 1983, as, upon reargument and renewal, adhered to its original determination.

Appeal from the judgment dated January 5, 1983, dismissed as academic, without costs or disbursements. Said judgment was superseded by the amended judgment dated March 22, 1983.

Amended judgment dated March 22, 1983, reversed insofar as appealed from, without costs or disbursements, and proceeding dismissed on the merits. Judgment dated January 5, 1983, modified accordingly.

Petitioner, who was dismissed from his position as a conductor in the New York City Transit Authority on the ground of misconduct, commenced this proceeding pursuant to CPLR article 78 to review that determination. Special Term denied the petition in all respects, except that the New York City Transit Authority was ordered to pay petitioner an amount equivalent to the monetary value of accrued vacation time which had not been used by petitioner at the time of his dismissal. Upon appellants' motion for renewal and reargument, Special Term adhered to its original determination. The appeals are from so much of the original judgment as directed the payment for accrued unused vacation time, and from so much of the amended judgment as, upon renewal and reargument, adhered to that determination. Petitioner has not cross-appealed. Thus, the sole issue presented for our determination is whether an employee of the New York City Transit Authority who has been dismissed on the basis of misconduct is entitled to be paid the cash value of vacation time which had accrued but had not been used at the time of dismissal. We conclude that he is not.

In the absence of statutory or contractual authority, a public employee whose employment has terminated may not recover the monetary value of unused vacation time that had accrued as of the date of termination (Coates v. City of New York, 49 A.D.2d 565, 370 N.Y.S.2d 628; Smith v. City of New York, 120 Misc.2d 868, 467 N.Y.S.2d 504; Grossman v. City of New York, 71 Misc.2d 234, 335 N.Y.S.2d 890; Rosenthal v. Walsh, 69 Misc.2d 612, 330 N.Y.S.2d 612; Spitalnik v. City of New York, 56 Misc.2d 183, 288 N.Y.S.2d 781; cf. Clift v. City of Syracuse, 45 A.D.2d 596, 360 N.Y.S.2d 356; Vaccaro v. Board of Educ. of City of N.Y., 54 Misc.2d 206, 282 N.Y.S.2d 881). In this case petitioner failed to establish the existence of any statute, regulation, order or contractual provision authorizing the payment of such sum. The New York City Transit Authority is a public benefit corporation created by the State (Public Authorities Law § 1201[1]; Matter of Subway-Surface Supervisors Assn. v. New York City Tr. Auth., 44 N.Y.2d 101, 107, 404 N.Y.S.2d 323, 375 N.E.2d 384) which, although fiscally interdependent with the City of New York, is a separate entity (Matter of Subway-Surface Supervisors Assn. v. New York City Tr. Auth., supra, pp. 111-112, 404 N.Y.S.2d 323, 375 N.E.2d 384). Thus, petitioner may not rely upon General Municipal Law § 92(1), which provides, inter alia, that the Mayor of the City of New York may, by order, authorize cash payment of the monetary value of accumulated and unused vacation time as of the date of a city officer's or employee's separation from...