Linwood v United Activities Unlimited, Inc.

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[*1] Linwood v United Activities Unlimited, Inc. 2014 NY Slip Op 50612(U) Decided on March 27, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2013-455 RI C.

Linda Linwood, Appellant,

against

United Activities Unlimited, Inc., LOUIS DELUCA and ALICE HARTIE, Respondents.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered November 2, 2012. The judgment, after a nonjury trial, dismissed the action.


ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the principal sum of $2,740.85, based on the alleged nonpayment of wages. At a nonjury trial, it was established that plaintiff had been employed by the corporate defendant for approximately 12 years, and that, at the time her employment was terminated, she was working as a supervisor. Plaintiff claimed that, on January 1st of the year in which her employment was terminated, her entitlement to her total of 25 annual vacation days for that calendar year had vested; that she had used 11 of those days; and that, following the July 13th termination of her employment, she had been paid for 3 unused vacation days, but was entitled to be paid for 11 additional unused vacation days. Following the trial, the Civil Court dismissed the action.

The determination as to whether a former employee is entitled to be paid for vacation time is governed by the contract between the parties (see Matter of Glenville Gage Co. v Industrial Bd. of Appeals of State of NY, Dept. of Labor, 70 AD2d 283 [1979]; Matter of Ross v Specialty Insulation Mfg. Co., 71 AD2d 766 [1979]; Steinmetz v Attentive Care, Inc., 39 Misc 3d 148[A], 2013 NY Slip Op 50905[U] [App Term, 9th & 10th Jud Dists 2013]; Bucalo v King O'Rourke Buick Pontiac GMC, 33 Misc 3d 136[A], 2011 NY 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 the express oral assurances of her employer that she would be paid for the time in issue (see Garrigan v Incorporated Vil. of Malverne, 12 AD3d 400, 401 [2004]; Gendalia v Gioffre, 191 AD2d 476 [1993]), or if she can establish that the defendant employer had a regular practice of paying its employees upon their termination for particular varieties of unused vacation time and that the employee had relied upon such practice in accepting or continuing her employment for the defendant (see Spencer v Christ Church Day Care Ctr., 280 AD2d 817, 817-818 [2001]). The employee bears the burden of proving an entitlement to payment for vacation time (see Grisetti v Super Value, 189 Misc 2d 800, 801 [App Term, 9th & 10th Jud Dists 2001]).

Here, it was uncontested that, had plaintiff worked the entire calendar year of her final [*2]year of employment, she would have been entitled to 25 vacation days for that year. Furthermore, defendant conceded that it had a policy of paying former employees, upon their termination, for unused vacation days, and, in fact, it had paid plaintiff for three such days. Thus, the issue presented was whether, as plaintiff claimed, plaintiff's right to all 25 of her annual vacation days had "vested" at the commencement of the calendar year, or whether, as defendant maintained, plaintiff's right to vacation days accrued on a pro rata basis, over the course of the calendar year.

The corporate defendant's Policy and Procedure Manual did not address the specific issue presented. Defendants Deluca and Hartie, who were identified, respectively, as the chief executive officer and the chief financial officer of the corporate defendant, each testified that the corporate defendant had an established policy of paying terminated employees only for vacation time that had actually "accrued" prior to their dismissals, and, indeed, of "docking" the pay of employees who used more vacation time than they had "accrued." From their testimony, it was clear that Deluca and Hartie used the term "accrued" to refer to an accumulation proportionate to the days worked. Deluca further testified that plaintiff, who had worked as a supervisor, should have been aware of that policy.

Since plaintiff failed to prove that she had a contractual entitlement to be paid for vacation days on anything other than a pro rata basis, or that she had relied either on express representations that she would be paid for the days in issue or an established corporate practice of making such payments, we conclude that plaintiff failed to establish a prima facie case. Consequently, we find that the judgment of the Civil Court rendered substantial justice between the parties according to the rules and principles of substantive law (see CCA 1804, 1807).

We note that the corporate defendant's Policy and Procedure Manual was adequate to comply with the dictates of Labor Law § 195 (5) (see Chimarev v TD Waterhouse Investor Servs., Inc., 99 Fed Appx 259 [2d Cir 2004]). We further note that plaintiff, who was employed as a supervisor and whose weekly salary exceeded $900, did not fall within the class of employees protected by Labor Law § 198-c.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 27, 2014

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