Opinion
July 18, 1996
Appeal from the Supreme Court, Rensselaer County (Hughes, J.).
Plaintiff, the City Clerk for defendant City of Troy in Rensselaer County from January 4, 1984 until January 6, 1994, brought this action to recover compensation for accrued leave time in the amount of $18,899.01. Although a City ordinance enacted February 1, 1968 and amended August 14, 1969 limits the accumulation of vacation credits to 30 days (Code of Ordinances of City of Troy § 2-31 [b] [5]), plaintiff bases her claim on (1) the City's Resolution No. 2 of 1988, which authorized the City Manager to approve greater accumulations of vacation time for "the City Manager, City Department Heads and exempt full-time City personnel", (2) the City's established practice and policy of compensating such employees for accrued vacation time in excess of 30 days, and (3) plaintiff's reliance upon said resolution, practice and policy. Following joinder of issue, plaintiff moved for summary judgment for the relief demanded in the complaint and defendants cross-moved for, inter alia, partial summary judgment determining the City's ordinance to be valid and applicable to plaintiff's claim. Except to the extent of authorizing plaintiff to bring a further claim for accumulated vacation time up to the 30-day maximum, Supreme Court awarded summary judgment dismissing the complaint in its entirety. Plaintiff appeals.
In our view, the issues raised on the parties' cross motions and on this appeal were properly resolved by Supreme Court. We accordingly affirm. First, in view of the well-settled legal principle that an ordinance may not be repealed or amended by a resolution, a mere "ministerial act declarative of the will of the corporation" ( City of Troy Unit of Rensselaer County Ch. of Civ. Serv. Empls. Assn. v. City of Troy, 36 A.D.2d 145, 147, affd 30 N.Y.2d 549), we are constrained to resolve the conflict between the ordinance and the resolution in favor of the former.
Nor are we persuaded that Resolution No. 2 of 1988 affords plaintiff equitable or contract rights to accrued vacation leave in excess of 30 days. Fundamentally, the doctrine of estoppel may not be applied against the State or one of its subdivisions ( see, Matter of Baker v. Regan, 114 A.D.2d 187, 192, affd 68 N.Y.2d 335), and the ordinance was a basic part of the terms and conditions of plaintiff's employment with the City and limited her ability to accumulate vacation time ( see, City of Troy Unit of Rensselaer County Ch. of Civ. Serv. Empls. Assn. v. City of Troy, supra; see also, Granada Bldgs. v. City of Kingston, 58 N.Y.2d 705, 708; Hess v. Board of Educ., 41 A.D.2d 151, 153). Further, plaintiff has made no competent showing of discrimination or denial of equal protection ( see, Giovannetti v Dormitory Auth., 115 A.D.2d 851, affd 69 N.Y.2d 621). Plaintiff's additional contentions have been considered and found unavailing.
Mikoll, White and Spain, JJ., concur.
I respectfully dissent. The doctrine of estoppel can be applied "against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained" ( Matter of Owens v. McGuire, 121 A.D.2d 292, 295). This is an "`unusual factual situation'" ( Matter of E.F.S. Ventures Corp. v Foster, 71 N.Y.2d 359, 369) unlike those where a plaintiff fails to take steps to secure a benefit ( see, Freda v. Board of Educ., 224 A.D.2d 360) or loses out on a future benefit because of misinformation supplied by a public employer ( see, Matter of Novak v. New York State Off. for Aging, 226 A.D.2d 859).
Here, it is undisputed that plaintiff rightfully earned vacation leave time and accrued certain benefits prior to her retirement. No doubt had defendant City of Troy informed its department heads and exempt full-time personnel of its plans to discontinue its established practice and policy of permitting accumulations of leave in excess of 30 days and not follow the 1988 resolution, plaintiff would have used her vacation time and not let it accumulate. She certainly had the right to rely on the express policy and established practice of her employer and she did so to her detriment. In my opinion, this case presents "`one of those rarest of cases where estoppel [should be] applied against a governmental agency'" ( Matter of Novak v. New York State Off. for Aging, supra, at 860, quoting Matter of Rembert v. Perales, 187 A.D.2d 784, 786) to prevent the injustice of stripping plaintiff of vacation time earned and accrued over many years of labor simply because the City, unilaterally and without notice, decided to revert back to its prior policy as expressed in the ordinance. Ordered that the order is affirmed, without costs.