IN RE: Robert KARP (1999)

Appeal from a judgment of the Supreme Court (Viscardi, J.), entered November 26, 1997 in Essex County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's request to be paid for certain accrued vacation days.

Respondent, a community college jointly sponsored by Essex and Franklin Counties, employed petitioner from 1982 until he resigned in 1997.   In this proceeding, petitioner challenges respondent's refusal to compensate him for 40 unused vacation days which he claims accrued between 1982 and 1985.   Supreme Court dismissed the petition and this appeal followed.

Although petitioner acknowledges that respondent was without express authority to pay petitioner for unused vacation time, petitioner nevertheless contends that Supreme Court erred in dismissing the petition.   It is his position that because respondent has in the past apparently paid other employees for unused vacation time, it was therefore obligated to pay him.   Petitioner attests that in 1986, upon the resignation of two of respondent's employees, they received compensation for their unused vacation time.   As further evidence of respondent's practice in this regard, petitioner points to a 1986 memorandum written by respondent's then-Dean of Administration recognizing that the school's policy respecting unused vacation time needed clarification and that, in the interim, respondent would honor its past practice for vacation time accrued up until August 31, 1985.

 As Supreme Court aptly observed, if not expressly authorized by statute, local law, resolution or pursuant to a contract term, a public employee may not be paid for unused vacation time (see, General Municipal Law § 92;  Matter of Rubinstein v. Simpson, 109 A.D.2d 885, 886, 487 N.Y.S.2d 77);  payments made without such authority are deemed public gifts, prohibited by N.Y. Constitution, article VIII, § 1 (see, May v. Board of Educ. of Ballston Spa Cent. School Dist., 170 A.D.2d 920, 922, 567 N.Y.S.2d 186;  Hess v. Board of Educ. of Cent. School Dist. No. 1, 41 A.D.2d 151, 153, 341 N.Y.S.2d 536).   The mere fact that respondent, despite lacking authority to do so, may have on prior occasions compensated employees for unused vacation time does not validate petitioner's claim.   Express authorization being required, prior conduct cannot satisfy the express statutory authorization needed to form a basis for recovery against a body (see, Hess v Board of Educ. of Cent. School Dist. No. 1, supra, at 153, 341 N.Y.S.2d 536).

 Nor are we persuaded that respondent should be estopped from refusing to pay him.   It is a fundamental principle that the doctrine of estoppel cannot be applied against an entity of the government (see, Piscitella v. City of Troy, 229 A.D.2d 767, 768, 646 N.Y.S.2d 191) unless a manifest injustice would result from either contractual or proprietary action taken by such entity (see, Matter of Branca v. Board of Educ., Sachem Cent. School Dist. at Holbrook, 239 A.D.2d 494, 495-496, 657 N.Y.S.2d 445).   Here, the record fails to suggest that such a result would occur, particularly in view of evidence that petitioner was advised as early as 1986 that he should develop a plan to use any remaining vacation time during that academic year.

ORDERED that the judgment is affirmed, without costs.

YESAWICH Jr., J.

MIKOLL, J.P., MERCURE, CREW III and PETERS, JJ., concur.