Matter of Andrews v. State of New York , 29 N.Y.S.3d 679 ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: April 14, 2016                    521666
    ________________________________
    In the Matter of ARTHUR M.
    ANDREWS et al.,
    Appellants,
    v                                     MEMORANDUM AND ORDER
    STATE OF NEW YORK et al.,
    Respondents.
    ________________________________
    Calendar Date:   February 9, 2016
    Before:   Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.
    __________
    Lippes Mathias Wexler Friedman LLP, Albany (Jeffrey P. Mans
    of counsel), for appellants.
    Hancock Estabrook, LLP, Syracuse (John G. Powers of
    counsel), for respondents.
    __________
    Egan Jr., J.
    Appeal from a judgment of the Supreme Court (Zwack, J.),
    entered November 5, 2014 in Albany County, which, among other
    things, converted an action into a proceeding pursuant to CPLR
    article 78 and granted respondents' motion for summary judgment
    dismissing the petition.
    Petitioners are current or former employees of respondent
    Department of Corrections and Community Supervision (hereinafter
    DOCCS) who, in turn, also are current or former members of the
    United States Armed Forces. During their respective periods of
    employment with DOCCS, petitioners were – at different times and
    for varying durations – ordered to report for a period or periods
    of military duty. While on military leave from their employment,
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    petitioners did not accrue vacation or sick leave credits because
    they were not "in full pay status for at least seven workdays
    during [the] biweekly pay period" (4 NYCRR 21.2 [b] [1]; 21.3
    [b]).
    In May 2013, petitioners' then counsel sent a letter to
    respondent Daniel F. Martuscello III, DOCCS' Director of Human
    Resources Management, demanding that petitioners be provided with
    the vacation and sick leave credits that accrued during their
    respective periods of military service. When no response was
    forthcoming, petitioners commenced this proceeding seeking, among
    other things, a declaration that the denial of vacation and sick
    leave accruals during their respective periods of military leave
    violated the Uniformed Services Employment and Reemployment
    Rights Act (see 38 USC § 4301 et seq. [hereinafter USERRA]) and
    Military Law § 242, an order enjoining respondents from denying
    them such credits during their periods of military service, an
    order directing respondents to calculate and credit the amount of
    vacation and sick leave accruals that petitioners were denied
    during their periods of military service, damages for
    respondents' allegedly willful violation of USERRA and damages
    equal to the value of vacation and sick leave accruals for those
    petitioners who no longer were eligible to receive the credits
    allegedly owed to them. Respondents answered and raised various
    affirmative defenses, including sovereign immunity, statute of
    limitations and failure to state a cause of action, and
    thereafter moved for summary judgment dismissing the petition
    upon those grounds.1 Supreme Court, among other things,
    implicitly converted what petitioners had denominated as a
    declaratory judgment action into the instant CPLR article 78
    proceeding and granted respondents' motion for summary judgment
    dismissing the petition. In so doing, Supreme Court concluded
    1
    Although respondents couched this motion as a motion to
    dismiss under CPLR 3211 (a) (2), (5) and (7), the motion was made
    postanswer; hence, it was a CPLR 3212 motion for summary judgment
    that was based upon the CPLR 3211 (a) grounds asserted in
    respondents' answer (see Chenango Contr., Inc. v Hughes Assoc.,
    128 AD3d 1150, 1151 [2015]; Murray Bresky Consultants, Ltd v New
    York Compensation Manager's Inc., 106 AD3d 1255, 1257 n [2013]).
    -3-                521666
    that respondent State of New York did not waive its sovereign
    immunity, that only those claims arising within the four-month
    statute of limitations applicable to CPLR article 78 proceedings
    were timely and, in any event, that petitioners failed to state a
    cause of action.2 This appeal by petitioners ensued.
    We affirm. The parties initially debate whether
    petitioners primarily are seeking monetary or equitable relief,
    whether the relief sought is retroactive or prospective in nature
    and the corresponding extent to which either the doctrine of
    sovereign immunity bars petitioners' claims or the exception
    carved out by Ex Parte Young (
    209 U.S. 123
    [1908]) allows certain
    of those claims to survive. The parties also part company with
    respect to whether – as petitioners assert – USERRA and/or
    Military Law § 242 creates a plenary right of action in favor of
    service members alleging a violation thereof or – as respondents
    contend – such claims may only be asserted in the context of a
    CPLR article 78 proceeding. In conjunction therewith, the
    parties further disagree as to which statute of limitations, if
    any, applies to the claims asserted by petitioners. The parties'
    respective arguments on these points, however, need not detain
    us. Even assuming – without deciding – that certain of
    petitioners' claims survive the otherwise potentially dispositive
    sovereign immunity and/or statute of limitations defenses, we
    agree with Supreme Court that the petition as a whole fails to
    state a cause of action and was properly dismissed upon that
    ground.
    To understand petitioners' claims, a review of the
    applicable state and federal regulatory schemes is necessary. An
    employee in state service "shall not earn" either annual or sick
    leave credits "for any biweekly pay period unless he [or she] is
    in full pay status for at least seven workdays during such
    biweekly pay period" (4 NYCRR 21.2 [b] [1]; 21.3 [b]). Pursuant
    to Military Law § 242 (2), a state employee who is ordered to
    military duty is entitled to take a leave of absence for such
    2
    Having dismissed the petition in its entirety, Supreme
    Court did not address petitioners' separate request for class
    action certification.
    -4-                521666
    purpose and, consistent with the provisions of Military Law § 242
    (5), is entitled to be paid his or her salary and other
    compensation for a specified number of days. Upon the exhaustion
    of the military leave with pay afforded by Military Law § 242
    (5), certain eligible state employees "shall be granted
    supplemental military leave with pay for a period or periods not
    exceeding a total of 30 calendar days or 22 working days,
    whichever is greater" (4 NYCRR 21.15 [a]; see also 4 NYCRR
    21.16). The parties do not dispute that, during the period of
    time that a state employee is on military or supplemental
    military leave with pay, and during such additional period of
    time that he or she utilizes accumulated leave credits to remain
    on full pay status, such employee will continue to accrue
    vacation and sick leave credits. Once that employee has
    exhausted those available options and, hence, no longer is on
    full pay status, he or she – consistent with the requirements
    imposed by 4 NYCRR 21.2 (b) (1) and 21.3 (b) – no longer accrues
    such credits.
    On the federal side of the equation, USERRA prohibits an
    employer from denying a member of the uniformed services "initial
    employment, reemployment, retention in employment, promotion, or
    any benefit of employment" based upon, among other things, such
    member's performance of military service (38 USC § 4311 [a]). To
    that end, USERRA further provides that "a person who is absent
    from a position of employment by reason of service in the
    uniformed services shall be . . . deemed to be on furlough or
    leave of absence while performing such service . . . and . . .
    entitled to such other rights and benefits not determined by
    seniority as are generally provided by the employer . . . to
    employees having similar seniority, status, and pay who are on
    furlough or leave of absence under a contract, agreement, policy,
    practice, or plan in effect at the commencement of such service
    or established while such person performs such service" (38 USC §
    4316 [b] [1]; see 20 CFR 1002.150 [a]). Generally speaking,
    "accrual of vacation leave is considered to be a non-seniority
    benefit that must be provided by an employer to an employee on
    military leave of absence only if the employer provides that
    benefit to similarly situated employees on comparable leaves of
    absence" (20 CFR 1002.150 [c] [emphasis added]). Further, "[i]f
    the non-seniority benefits to which employees on furlough or
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    leave of absence are entitled vary according to the type of
    leave, the employee must be given the most favorable treatment
    accorded to any comparable form of leave when he or she performs
    service in the uniformed services" (20 CFR 1002.150 [b] [emphasis
    added]). For purposes of determining whether two forms of leave
    are comparable, consideration should be given to the purpose of
    the leave and the employee's ability to choose when to take the
    leave, with the duration of the leave being the most significant
    factor (see 20 CFR 1002.150 [b]).
    Petitioners' first cause of action alleges that respondents
    violated 38 USC §§ 4311 (a) and 4316 (b) by denying petitioners
    vacation and sick leave accrual credits during their respective
    periods of military duty – benefits that purportedly were
    afforded to similarly situated state employees on allegedly
    comparable leaves of absence. In support of this claim,
    petitioners did nothing more than assert in a conclusory fashion
    – and without reference to the allegedly applicable statutory or
    regulatory provisions – that such accruals and credits were
    "generally provided by the [s]tate . . . to such employees on
    [w]orkers' [c]ompensation [l]eave, jury duty, bereavement, and
    extended sick leave/[Family Medical Leave Act]." Noticeably
    absent from the petition was any evidence to support petitioners'
    claim that state employees who were absent from work due to one
    of the cited forms of leave did in fact accrue vacation and/or
    sick leave credits even if they were not "in full pay status for
    at least seven workdays during [the relevant] biweekly pay
    period" (4 NYCRR 21.2 [b] [1]; 21.3 [b]).3 Finally, the petition
    does not set forth any factual assertions demonstrating that the
    leaves of absence at issue – workers' compensation, jury duty,
    bereavement and extended sick leave – are in fact comparable in
    terms of, among other things, purpose and duration to the
    military/supplemental military leaves applicable to petitioners
    (see 20 CFR 1002.150 [b]). Absent such factual allegations,
    3
    To the contrary, the regulation governing the accrual of
    vacation and sick leave credits for a state employee who is on a
    workers' compensation leave of absence makes clear that such
    credits are accorded only to "[a]n employee who receives full pay
    for any period of leave under this section" (4 NYCRR 21.8 [e]).
    -6-                521666
    petitioners' first cause of action cannot stand.
    We reach a similar conclusion with regard to petitioners'
    second cause of action under Military Law § 242 (4), which
    precludes an employer from subjecting an employee on a leave of
    absence due to ordered military duty "to any loss or diminution
    of time service, increment, vacation or holiday privileges, or
    any other right or privilege, by reason of such absence." As
    noted previously, state employees on military leave/supplemental
    military leave (such as petitioners) are entitled to be paid for
    certain specified periods of time, and the parties do not dispute
    that such employees also may utilize certain accrued leave
    credits to extend their full pay status. While on full pay
    status, employees on leave for military service – like any other
    full pay status state employee – continue to accrue vacation and
    sick leave credits; once employees on leave for military service
    exhaust their options to remain in full pay status, they – like
    all other state employees on unpaid leave – no longer accrue
    vacation and sick leave credits. As petitioners failed to
    demonstrate that they were treated differently than any other
    state employee on an unpaid leave of absence, Supreme Court
    correctly concluded that petitioners failed to state a cause of
    action in this regard and properly granted respondents' motion
    for summary judgment dismissing the petition in its entirety.4
    In light of this conclusion, we need not address petitioners'
    request for class action certification.
    Peters, P.J., McCarthy and Lynch, JJ., concur.
    4
    We note in passing that to the extent that certain
    respondents – namely, Andrew M. Cuomo, Anthony J. Annucci and
    Martuscello – were named in their individual capacities, the
    petition is devoid of allegations that such respondents actually
    acted in their individual – as opposed to their official –
    capacities vis-a-vis petitioners and, as such, the claims against
    them in their individual capacities were properly dismissed (see
    generally Monreal v New York State Dept. of Health, 38 AD3d 1118,
    1119 [2007]; Martin v Lanigan, 150 AD2d 899, 901 [1989]).
    -7-                  521666
    ORDERED that the judgment is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 521666

Citation Numbers: 138 A.D.3d 1297, 29 N.Y.S.3d 679

Judges: Egan, Peters, McCarthy, Lynch

Filed Date: 4/14/2016

Precedential Status: Precedential

Modified Date: 11/1/2024