Port Authority Police Benevolent Ass'n v. Anglin

Kavanagh, J. (dissenting).

I must dissent. I see no difference between having to work when one is entitled to be on vacation and having to work overtime. Each involves additional time at work and each results in additional compensation for “work in excess of [the employee’s] regularly established hours of employment” (General Municipal Law § 90). Simply put, I see no rational basis upon which to distinguish one from the other, and I believe that the payments that petitioner Barry McCarthy (hereinafter petitioner) received for having to work on vacation days as a result of the national emergency should be included in any computation of his final average salary.

There is no dispute that petitioner was entitled under the collective bargaining agreement to paid vacation, and he was also entitled to have the payments that he would have received while on vacation included in any computation of his final average salary. What is at issue here is whether that computation should also include any additional compensation that he received from having to work on days that he was entitled to be on vacation.

Initially, it should be noted that no claim has ever been made that petitioner did not work the hours in question or lose the vacation days to which he was otherwise entitled. Nor is there any suggestion that petitioner, by working these hours, was engaged in a scheme designed to manipulate the calculation of his final average salary so as to enhance the benefits that he would receive upon retirement (see Matter of Hoffman v New York State Policemen’s & Firemen’s Retirement Sys., 142 AD2d 854, 855-856 [1988]; see also Matter of Miller v New York State Teachers’ Retirement Sys., 157 AD2d 890, 891 [1990]). In addition, these payments were all made pursuant to a comprehensive plan that was in place at the time petitioner was ordered to *499work as a result of the parties’ collective bargaining agreement (see Matter of Shames v Regan, 132 AD2d 743, 744 [1987]; see also Matter of Bascom v McCall, 221 AD2d 879, 880 [1995]), and none constituted a lump-sum payment for either sick leave, accumulated vacation credit or any form of termination pay (see Retirement and Social Security Law § 302 [9] [d]; § 431). In short, there is nothing in the record to indicate that these payments were made for any other reason than to properly compensate petitioner for work that he performed for the Port Authority Police Department of New York and New Jersey “in excess of [his] regularly established hours of employment” (General Municipal Law § 90).

Finally, in my view, it does not matter, as the majority appears to contend, whether these payments are classified as compensation “for the loss of time when [petitioner] would not have worked” or as payments for work performed by petitioner “beyond his regular hours” of employment. Either way, petitioner was given no choice in the matter and was required to be on the job and at the job site at a time when he was entitled to be on vacation. That fact established that these payments were compensation for additional work he performed for the Port Authority and, as such, should be included in the computation to determine his final average salary (see Matter of Shames v Regan, 132 AD2d at 745; Matter of Green v Regan, 103 AD2d 878, 878-879 [1984]; Matter of Murray v Levitt, 47 AD2d 267, 269 [1975]). The interpretation by respondents to the contrary is irrational and, in my view, should be annulled (see Matter of Fay v Regan, 97 AD2d 192, 196 [1983]).

Adjudged that the determination is confirmed, without costs, and petition dismissed.