
    In the Matter of Frank E. Vescio, Appellant, v Arthur Levitt, as Comptroller of the State of New York and Administrator of the New York State Employees’ Retirement System, Respondent.
   Appeal from a judgment of the Supreme Court at Special Term, entered December 31, 1975 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel the respondent to recalculate the petitioner’s retirement allowance. The petitioner upon his retirement from employment by the City of Yonkers had accrued 75 days of unused vacation in his last three years of employment and received a lump sum payment for such time. The respondent has allowed him 30 days of such payment to be considered in computing his final average salary for the three-year period specified in the pertinent provisions of section 2 of the Retirement and Social Security Law. The petitioner contends that he has a vested right to have the value of the entire 75 days included; however, as noted by Special Term in its decision, there is no evidence that the City of Yonkers considered such payment to be salary or wages and there is no evidence of any administrative policy on the part of the respondent which would have given rise to a contractual right to have more than 30 days included. The issues herein were recently decided in Matter of Weber v Levitt (41 AD2d 452, affd 34 NY2d 797, 800) and the appeal has no substantial merit. Judgment affirmed, without costs. Greenblott, J. P., Sweeney, Mahoney, Herlihy and Reynolds, JJ., concur.  