Opinion
No. 2011–744 S C.
2013-05-23
Craig STEINMETZ, as Executor of the Estate of Cynthia Steinmetz, Respondent, v. ATTENTIVE CARE, INC., Appellant.
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.”
Appeal 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 asked to determine defendant's vacation policy in 1998 or thereafter, and defendant did not object to this omission. Following the jury's verdict, judgment was entered in favor of plaintiff in the principal sum of $56,967.24.
The determination as to whether a former employee is entitled to be paid for accrued vacation time is governed by the contract between the parties ( see Gennes v. Yellow Book of NY, Inc., 23 AD3d 520, 521–522 [2005];Matter of Glenville Gage Co. v. Industrial Bd. of Appeals of State of NY, Dept. of Labor, 70 A.D.2d 283 [1979];Bucalo v. King O'Rourke Buick Pontiac GMC, 33 Misc.3d 136[A], 2011 N.Y. Slip Op 52031[U] [App Term, 9th & 10th Jud Dists 2011] ). A former employee may also be entitled to recover if she can establish that she reasonably relied on express verbal assurances that she would be paid for unused vacation time ( see Garrigan v. Incorporated Vil. of Malverne, 12 AD3d 400, 401 [2004];Gendalia v. Gioffre, 191 A.D.2d 476 [1993] ), or if she can establish that the defendant employer had a regular practice of paying its employees upon their termination for accumulated and unused vacation time and that the employee relied upon such practice in accepting or continuing her employment for the defendant ( see Spencer v. Christ Church Day Care Ctr., 280 A.D.2d 817, 817–818 [2001] ). The plaintiff bears the burden of proving an entitlement to receive payment in lieu of accrued vacation time ( see Grisetti v. Super Value, 189 Misc.2d 800, 801 [App Term, 9th & 10th Jud Dists 2001] ). When, as here, an employee dies while employed, her death terminates her employment, and the representative of her estate bears the burden of proving the estate's entitlement to payment in lieu of vacation time for vacation time the decedent had accrued at the time of death ( see Spencer v. Christ Church Day Care Ctr., 280 A.D.2d 817). In the present case, since plaintiff failed to prove that his decedent either had a contractual entitlement to be paid for accrued vacation time, or that she had relied on express representations that she would be paid for such time, and since plaintiff further failed to establish that defendant had a practice of making, or indeed had ever made, any payments in lieu of vacation time to its current or former employees, we conclude that plaintiff failed to establish a prima facie case.
We note that since plaintiff's decedent was an executive of defendant corporation, the protections of Labor Law § 198–c were inapplicable to her ( seeLabor Law § 198–c [3] ).
We pass on no other issue.
Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint.