The petitioner's guilty plea did not warrant dismissal of her petition/complaint. Rather, in the absence of superseding authority, the express provisions of the collective bargaining agreement must control ( see Baksh v Town/Village of Harrison, 38 AD3d 808; Matter of Degnan v Constantine, 189 AD2d 423, 424; Matter of Rubinstein v Simpson, 109 AD2d 885, 886; Coates v City of New York, 49 AD2d 565, 566). The collective bargaining agreement at issue provides as follows: "Unit members employed on a twelve (12) month basis shall be entitled to twenty-two (22) days of leave with pay per calendar year to be taken as approved by the appropriate department head or his/her designee, consistent with the needs of the agency.
The petitioner's guilty plea did not warrant dismissal of her petition/complaint. Rather, in the absence of superseding authority, the express provisions of the collective bargaining agreement must control (see Baksh v Town/Village ofHarrison, 38 A.D.3d 808 [2007]; Matter of Degnan vConstantine, 189 A.D.2d 423, 424 [1993]; Matter of Rubinstein v Simpson, 109 A.D.2d 885, 886 [1985]; Coates v City ofNew York, 49 A.D.2d 565, 566 [1975]). The collective bargaining agreement at issue provides as follows: "Unit members employed on a twelve (12) month basis
Since this proceeding is in the nature of mandamus, the statute of limitations did not begin to accrue on the date of the petitioner's termination but rather on the date that the County refused his demand, inter alia, for compensatory pay ( see CPLR 217; Matter of Johnson v. Town Bd. of Town of Poughkeepsie, 85 AD2d 694). The County also contends that the petition, which seeks compensation for accrued but unused compensatory time, fails to state a cause of action because such compensation is neither authorized by statute nor contract ( see NY Const, art VIII, ยง 1; Matter of Antonopoulou v. Beame, 32 NY2d 126; Matter of Rubinstein v. Simpson, 109 AD2d 885; Coates v. City of New York, 49 AD2d 565). Considering the facts in the light most favorable to the petitioner, accepting his proof as true and affording him every favorable inference that reasonably could be drawn therefrom, we conclude that the petitioner's allegation that the compensatory time was a condition of employment, and could not be taken away from him without compensation, states a valid cause of action ( see Gendalia v. Gioffre, 191 AD2d 476; Clift v. City of Syracuse, 45 AD2d 596; cf. Matter of Rubinstein v. Simpson, supra; see generally Leon v. Martinez, 84 NY2d 83).
In response to the defendants' prima facie showing, the plaintiff raised a triable issue of fact as to whether he had a contract with the defendant Incorporated Village of Malverne to compensate him for certain accumulated but unused benefits upon his retirement from his position as Chief of Police. The defendants contend that there was neither express statutory authority nor a contract between the Village and the plaintiff providing for such payments, and, therefore, he may not be compensated for accumulated but unused benefits upon termination ( see NY Const, art VIII, ยง 1; Matter of Antonopoulou v. Beame, 32 NY2d 126; Matter of Rubinstein v. Simpson, 109 AD2d 885; Coates v. City of New York, 49 AD2d 565). In response, the plaintiff contends that he had an agreement with the Village to receive the benefits outlined in the Police Benevolent Association contract throughout his tenure as Chief of Police, as well as during his time as a regular member of the police force. That contract provided for payment for accumulated but unused benefits upon retirement, including sick leave, vacation time, and terminal leave.
At issue on appeal is an order of Supreme Court granting defendant summary judgment dismissing the complaint. In the absence of a statutory or contractual basis for recovery, a public employee may not recover the monetary value of unused vacation time that has accrued as of the date of termination (see, Matter of Karp v. North Country Community Coll., 258 A.D.2d 775; Matter of Rubinstein v. Simpson, 109 A.D.2d 885, 886;Coates v. City of New York, 49 A.D.2d 565; Hess v. Board of Educ. of Cent. School Dist. No. 1, 41 A.D.2d 151, 153). Notably, plaintiff does not dispute this general point of law or the fact that he has no contractual right to compensation for his unused vacation days. He contends, however, that even in the absence of statutory or contractual authority, a public employee who is involuntarily terminated is constitutionally entitled to receive the cash value of unused vacation days, an argument that rests primarily on the Fourth Department decision in Clift v. City of Syracuse ( 45 A.D.2d 596) (hereinafter Clift). To be sure, the Fourth Department did note in Clift that where an employer "discharges an employee without having either given him the opportunity to use the vacation he has earned, or in the alternative, compensating him with its monetary value, it transgresses the due process requirements of both the New York State and United States Constitutions and it should not be permitted to do so" (id., at 600).
The City left it to the District Attorneys of each county to determine whether or not to adopt Personnel Policy and Procedure No. 619-77a for their Assistant District Attorneys. Bronx County did not adopt the policy for its assistants. In general, a public employee whose employment has terminated may not recover the monetary value of unused vacation and sick time in the absence of statutory or contractual authority (Matter of Antonopoulou v. Beame, 32 N.Y.2d 126; Matter of Rubinstein v. Simpson, 109 A.D.2d 885; Coates v. City of New York, 49 A.D.2d 565; Lombardi v. City of New York, 46 A.D.2d 750, affd 38 N.Y.2d 727). As an Assistant District Attorney, the plaintiff was not entitled to compensation for accrued leave under either the Career Salary Plan or the Personnel directive. By voluntarily resigning from her position, the plaintiff effectively waived her right to be compensated for unused vacation and sick time (see, Clift v. City of Syracuse, 45 A.D.2d 596). Unlike an employee whose services are involuntarily terminated, the plaintiff had the opportunity to use the time she earned (supra; see, May v. Board of Educ., 170 A.D.2d 920). Although the plaintiff maintains that the demands of her job prevented her from utilizing the time owed her, there is nothing in the record to suggest that she would have been penalized by her employer for doing so. No statutory or contractual provision exists to authorize compensation for voluntarily foregoing the benefits to which she was entitled.
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; Smith v. City of New York, 120 Misc.2d 868; Grossman v. City of New York, 71 Misc.2d 234; Rosenthal v. Walsh, 69 Misc.2d 612; Spitalnik v. City of New York, 56 Misc.2d 183; cf. Clift v. City of Syracuse, 45 A.D.2d 596; Vaccaro v. Board of Educ., 54 Misc.2d 206). In this case petitioner failed to establish the existence of any statute, regulation, order or contractual provision authorizing the payment of such sum.
Pursuant to the enabling statute (General Municipal Law, ยง 92), previous Mayors by executive orders (p.o. Nos. 16/1974, 24/1977) had provided for lump-sum cash payments to employees separated for other than fault, with less than 10 years of service, of "up to two years of unused annual leave plus active overtime credits, providing the total does not exceed 54 days." Absent a statute or a contractual basis for recovery, an employee is not entitled to cash payment on separation from city service for other than his scheduled salary entitlement ( Stetler v McFarlane, 230 N.Y. 400, 408; Lombardi v City of New York, 46 A.D.2d 750, affd 38 N.Y.2d 727; Coates v City of New York, 49 A.D.2d 565). While accepting this as an accurate statement of the law, the plaintiff contends that where separation occurs without fault, a refusal to pay all unused time credited to her would constitute a taking of property without due process of law.
Under analogous facts the Second Department held with respect to unused vacation time: "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 AD2d 565; Smith v. City of New York, 120 Misc 2d 868; Grossman v. City of New York, 71 Misc 2d 234; Rosenthal v. Walsh, 69 Misc 2d 612; Spitalnik v. City of New York, 56 Misc 2d 183; cf. Clift v. City of Syracuse, 45 AD2d 596; Vaccaro v. Board of Educ, 54 Misc 2d 206)." ( Matter of Rubinstein v Simpson, 109 AD2d 885, 886 [2d Dept 1985].)
While the New York Constitution interdicts gratuities, the General Municipal Law permits, but does not require, cash payment for unused vacation. In Coates v City of New York ( 49 A.D.2d 565), an injured sanitation worker was involuntarily retired pursuant to the Administrative Code of the City of New York and was prevented from exhausting his accrued vacation time. The Appellate Division, Second Department, wrote (p 566): "we held that payment in lieu of accumulated unused sick leave was a negotiated condition of employment specified in a contract.