The opinion of the court was delivered by: Robert C. Mulvey, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The respondent Village of Elmira Heights has moved, pursuant to CPLR 7804(f), for an order dismissing this Article 78 petition by former Chief of Police Robert N. Hauptman seeking separation pay pursuant to Section 207-m of the General Municipal Law and seeking damages for violation of his civil rights under 42 U.S.C. Sections 1983 and 1988.
The petitioner has alleged that he is owed payment for accrued unused compensatory time, vacation and sick time earned prior to November 6, 1992, when he was a patrolman and sergeant in the collective bargaining unit, and unused vacation time since that date as Chief. He contends that Section 207-m of the General Municipal Law requires the respondent to furnish all forms of benefits available to his subordinates, which include payment for unused benefit time. He further contends that the respondent has denied him his due process and equal protection rights under the New York State and United States Constitutions.
In lieu of answering the petition, the respondent has moved for dismissal of the petition on the basis that the petition fails to state a claim and is otherwise deficient as a matter of law.
The respondent contends that the petition must be dismissed on the grounds that:
there was no express agreement regarding terms and conditions of employment;
payment by the respondent would violate the constitutional prohibition against gifts of public funds;
the petitioner lacks standing;
the proceeding was commenced after the expiration of the statute of limitations;
the petition does not allege any valid constitutional claims..
On November 15, 2003 the petitioner notified the Mayor and other village officers of his intention to ...