Judgment, Supreme Court, New York County, entered on May 28, 1974, insofar as it granted plaintiff's motion for summary judgment on her first cause of action, unanimously modified, on the law, to the extent of denying plaintiff's motion for summary judgment on her first cause of action, and granting defendant's cross motion to dismiss the first cause of action and dismissing said cause of action, and judgment otherwise affirmed, without costs and without disbursements. In her first cause of action plaintiff seeks to recover the cash equivalent of the terminal leave allowance to which her deceased husband would have been entitled had he retired on September 10, 1972. Unfortunately, he passed away on September 11, 1972, while still in the employ of the City of New York. Plaintiff has established neither a contractual nor a statutory right to the relief which she seeks in her first cause of action. The "death gamble" provision (Administrative Code of City of New York, § B3-36.0, subd. 4, par. [d]), relied on by plaintiff, does not apply to the facts or subject matter (terminal leave) encompassed by the first cause of action. The term "retirement allowance", as used in the cited section of the Administrative Code, does not include terminal leave pay. (See Administrative Code, § B3-1.0, subd. 15.)
Concur — Kupferman, J.P., Lupiano, Steuer, Capozzoli and Lane, JJ. [ 78 Misc.2d 1057.]