I would grant the motion to vacate the stay, in order to maintain the status quo and avoid irretrievable, irreparable harm to plaintiffs, pending determination of the expedited appeal directed by the majority. The city is protected by the $1,000,000 bond posted by plaintiffs and will suffer no harm by waiting another week for determination of the appeal on the merits.
Moreover, by denying the application to vacate the automatic stay obtained by the city (CPLR 5519, subd [a], par 1), a serious question is raised as to the mootness of the appeal and our jurisdiction to hear it, because the firings will occur today.
*407Finally, since both sides are prepared to try the factual issues raised hereon immediately, I believe such trial should be directed to determine the intent of the parties in drawing the contractual clause in issue and the effect of the statute on such clause when there are other remedies available to the city to accomplish necessary economies.
Plaintiffs rely on section 1 of article III of this agreement for the proposition that they were hired for a guaranteed two-year period in exchange for their execution and delivery of an irrevocable waiver and release of their right to seek added compensation in accordance with the prevailing rate of wage provisions of section 220 of the Labor Law. Said provision states, in pertinent part: "The City agrees to employ each of the employees for the period between July 1, 1974 and June 30, 1976 for 261 (8 hour) working days per annum at the respective annual compensations set forth in Schedule 'A’ of this Article III.”
Defendants contend that the agreement was never intended to guarantee employment for plaintiff sanitation workers; and that, in any event, such contractual provision, even if so construed, would be invalid under subdivision b of section 1173-4.3 of the Administrative Code of the City of New York since the city cannot bargain away its right to "relieve its employees from duty because of lack of work or for other legitimate reasons.”
Conceding, arguendo, that lack of money is a "legitimate reason”, a serious factual issue is presented, in my view, as to whether the city may fire these plaintiffs and still retain provisional employees.
In sum, in light of the irreparable harm to these plaintiffs if the preliminary injunction is not reinstated (e.g., loss of health and hospital coverage, loss of dental insurance benefits, loss of life insurance benefits, possible loss of pension benefits, loss of death benefits and pension credit rights and loss of the right to disability retirement benefits and accidental disability benefits), compared to the limited possible injury to the city if the stay is vacated, orderly procedure and a right sense of fairness dictate that the stay be vacated and an expedited appeal or trial be directed.