ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

October 24, 2013

Liquidating unused leave accruals upon retirement, resignation or death
Purcell v City of New York, 2013 NY Slip Op 06799, Appellate Division, First Department

Thomas R. Purcell, a former New York County Deputy Public Administrator employed by the Office of the Public Administrator [Office], requested payment for his unused annual and sick leave accruals following his retirement from his position. However, the appointing authority advised him that he was not due any compensation for unused leave credits and that, in fact, his “final leave balance was negative.” 

 The payment or "liquidation" of such leave credits could be a significant consideration upon retirement.

Typically an employee’s unused annual leave accruals and unpaid “overtime” or compensatory time credits are paid to the individual upon his or her resignation or retirement or to his or her estate in the event of his or her death while in service.

If, on the other hand, an employee has unused annual leave credits at the time he or she retires and elects to liquidate such credits by means of a lump sum payment rather than "run them out," the lump sum payment could be a factor to be included in computing the employee's final average salary for retirement purposes, resulting in a higher retirement allowance. 

As to sick leave, although unused sick leave is not liquidated unless authorized by law, rule or regulation or, in some instances, a collective bargaining agreement, accumulated unused sick leave may be used for “additional service credit” for the purpose of determining the individual’s retirement allowance and other benefits upon the individual's retirement.

Employees of the State as the employer, certain public authorities and certain other public entities who are members of the New York Employees' Retirement System can take advantage of their accrued and unused sick leave credits when they retire from service. Upon retirement such unused leave accruals can be used for additional member service credit in the retirement system. Up to 200 days of additional member service may be credited using such unused sick leave accruals [see Retirement and Social Security Law §41.j.1].

In addition, employee of the State as the employer and some municipal employees participating in the State's Employees' Health Insurance Plan [NYSHIP], can have the actuarial value of their unused sick leave credits applied towards the payment of any employee health insurance premium required following their retirement if they remain in NYSHIP [see Civil Service Law §167, subdivisions 4 and 5].

Purcell challenged the Office's determination in an Article 78 proceeding and Supreme Court issued and order remanding the matter to the appointing authority for issuance of “a revised determination based upon correct information.”

The Office subsequently issued a revised determination, asserting that its earlier calculation of Purcell's annual leave balance was correct. About six months after receiving the Office’s “revised” decision Purcell initiated a lawsuit alleging “breach of contract” based on the Office’s failure to compensate him for the value of his unused annual and sick leave time.

The Appellate Division agreed that Purcell was correct regarding his argument that a party seeking damages arising from an alleged breach of contract against a public official or governmental body may pursue an action at law. However, said the court, Purcell had failed to establish the existence of such a contract and thus could not maintain an action at law based on an alleged “breach of contract.”

“Although framed as one for breach of contract,” Purcell, said the court, was actually challenging to the Office of the Public Administrator's administrative determination that, based upon its calculations, he was not entitled to compensation for unused sick and annual leave. The appropriate procedure to test the Office’s decision was for Purcell to have initiated an Article 78 action.

Purcell, however, had failed to file an Article 78 petition in a timely fashion as he had initiated this lawsuit some six months after the Office issued its “final determination.” An Article 78 action cannot be maintained unless it is filed within the statutory four-month statute of limitations for initiating such actions.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_06799.htm
.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com