Weber v. Levitt
| Decision Date | 06 June 1974 |
| Parties | , 316 N.E.2d 327 In the Matter of Joseph P. WEBER, on Behalf of Himself and All Others Similarly Situated, Appellants, v. Arthur LEVITT, as Comptroller of the State of New York and Administrator of the New York State Policemen's and Firemen's Retirement System, Respondent. In the Matter of Edward LECCI, on Behalf of Himself and All Others Similarly Situated, Appellants, v. Arthur LEVITT, as Comptroller of the State of New York and Administrator of the New York State Policemen's and Firemen's Retirement System, Respondent. In the Matter of Daniel GREENWALD, Individually and as Representative of the Nassau County Patrolmen's Benevolent Association, Appellant, v. Arthur LEVITT, as Comptroller of the State of New York and Administrator of the New York State Policemen's and Firemen's Retirement System, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Allen R. Morganstern and Richard Hartman, Mineola, for appellants.
Louis J. Lefkowitz, Atty. Gen. (John Q. Driscoll and Ruth Kessler Toch, Albany, of counsel), for respondent.
The order of the Appellate Division, 41 A.D.2d 452, 344 N.Y.S.2d 381, in each of the three proceedings should be affirmed, without costs, on the opinion of Mr. Justice Louis M. Greenblott at the Appellate Division. Termination pay, although includible in the 'final average salary' for pension purposes, was properly limited to that portion attributable to the last three years of service. The Appellate Division correctly interpreted the limited effect of Kranker v. Levitt, 30 N.Y.2d 574, 330 N.Y.S.2d 791, 281 N.E.2d 840, as creating a vested right to inclusion only if based on administrative construction and practice for a 'given' or extended period of time, and then, only to the extent reasonable (see Matter of Hessel v. New York City Employees' Retirement System, 33 N.Y.2d 381, 385, 353 N.Y.S.2d 169, 172, 308 N.E.2d 688, 689). Hence, vacation pay was limited to 30 days as was done in the Kranker case; and unused sick leave credits were wholly excluded as neither warranted by law nor administrative construction (see Retirement and Social Security Law, § 431, Consol.Laws, c. 51--A).
In each case: Order affirmed.
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... ... Levitt ... Page 1290 ... [28 Ill.Dec. 700] (Sup.Ct.1976), 84 Misc.2d 903, 377 N.Y.S.2d 962.) ... Thus, in Birnbaum the plaintiffs ... See also Kranker v. Levitt (1972), 30 N.Y.2d 574, 330 N.Y.S.2d 791, 281 N.E.2d 840; Weber v. Levitt (1973), 41 A.D.2d 452, 344 N.Y.S.2d 381, Aff'd (1974), 34 N.Y.2d 797, 359 N.Y.S.2d 39, 316 N.E.2d 327, Cert. denied, 419 U.S. 997, 95 S.Ct ... ...
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