                          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,
                              -2-                521666

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 US 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
                              -5-                521666

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
