Steinmetz v. Attentive Care, Inc.

• Decision Date: 23 May 2013
• Docket Number: No. 2011–744 S C.,2011–744 S C.
• Citation: 2013 N.Y. Slip Op. 50905,39 Misc.3d 148,972 N.Y.S.2d 147
• Parties: Craig STEINMETZ, as Executor of the Estate of Cynthia Steinmetz, Respondent, v. ATTENTIVE CARE, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

39 Misc.3d 148

972 N.Y.S.2d 147

2013 N.Y. Slip Op. 50905

Craig STEINMETZ, as Executor of the Estate of Cynthia Steinmetz, Respondent,

v.ATTENTIVE CARE, INC., Appellant.

No. 2011–744 S C.

Supreme Court, Appellate Term, New York, 9th and 10th Judicial Districts.

May 23, 2013.

OPINION TEXT STARTS HEREAppeal from a judgment of the Suffolk County Court (Andrew G. Tarantino, Jr., J.), entered November 23, 2010. The judgment, upon a jury verdict, awarded plaintiff the principal sum of $56,967.24.

Present LaSALLE, J.P., NICOLAI and IANNACCI, JJ.

ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered in favor of defendant dismissing the complaint.

Cynthia Steinmetz was employed by defendant Attentive Care, Inc. from 1979 until her death in 2004. Plaintiff Craig Steinmetz, as executor of the estate of Cynthia Steinmetz, commenced this action in Supreme Court, Suffolk County, to recover the value of Ms. Steinmetz's accrued vacation time. The action was removed to the Suffolk County Court pursuant to CPLR 325(d).

At a jury trial, the only witness plaintiff called to testify about defendant's policies concerning the accrual of vacation time and the right to payment in lieu of vacation time was defendant's owner and president, Brian Botshon. Mr. Botshon stated that from 1979, when Ms. Steinmetz had begun working for defendant, until 1998, there had been no limit on the amount of vacation time that could be accrued, and that, in 1998, defendant had changed its policy by limiting to six weeks the amount of vacation time that employees were permitted to accrue. Mr. Botshon testified that, at that time, he had agreed that Ms. Steinmetz, who was defendant's vice president, would not lose her accrued vacation time, but he had also required that she start using her accrued time. He also testified that Ms. Steinmetz had still been employed by defendant when she had died of an illness in 2004, and that, at the time of her death, Ms. Steinmetz had 154.5 days in accrued vacation time.

Mr. Botshon further testified that defendant had never made any payments to any employee in lieu of vacation time, either during the term of employment or after the employee ceased working for defendant. An administrative log which, Mr. Botshon said, had been created in 1994, listed defendant's policies. The log provided:

“All benefits cease upon the date of resignation or termination of employment with the company. Office employees are advised that all allowable days off cease upon termination of employment with the company. Employees shall have no right to cash payment in lieu of sick leave, vacation days or personal days not taken prior to termination or resignation of employment.”

In addition, an office memorandum which, Mr. Botshon said, Ms. Steinmetz had participated in creating in 1998, included a statement that there was no monetary reimbursement for vacation that was not taken. Furthermore, defendant's employee handbook, dated May 1998, stated: “Payment in lieu of vacation: No cash payment will be paid in lieu of an employee taking their vacation time.”

Plaintiff's only other witness was Craig Steinmetz, who stated that, in reviewing Ms. Steinmetz's papers, he had not seen any correspondence from defendant advising Ms. Steinmetz that she had lost her vacation time.

Responding to special questions, the jury determined that plaintiff had proven by a fair preponderance of the credible evidence that plaintiff had accrued unpaid vacation time between 1979 and 1998; that defendant did not have a policy manual in 1979 which provided that no payment would be made to an employee for unused accumulated vacation time; and that defendant did not have a policy in 1978 which provided that no payment would be made to an employee for unused accumulated vacation time. We note that the jury was not...