Opinion
June 25, 1990
Appeal from the Supreme Court, Kings County (Krausman, J.).
Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the part of the proceeding requesting night differential pay is dismissed.
Contrary to the holding of the Supreme Court, the petitioner was not entitled to recover night differential pay during the period that he was wrongfully dismissed from his employment (see, Civil Service Law § 76; Alongi v. City of New York, 92 Misc.2d 1082; cf., Benson v. County of Nassau, 137 A.D.2d 642). There is no indication in the record of any provision in the collective bargaining agreement which provides for night differential pay during a period of wrongful dismissal. To the contrary, the agreement provides that if charges which are preferred against an employee are not sustained the employee will be paid at his/her regular rate of pay for the time lost by reason of such charges and that night differential pay be paid only "for hours worked" after 6:00 P.M. (see, Alongi v. City of New York, supra; cf., Benson v. County of Nassau, supra). Accordingly, the petitioner is not entitled to receive night differential pay for the period of his wrongful dismissal. Mangano, P.J., Kunzeman, Rubin and Balletta, JJ., concur.