
    In the Matter of Philip Ross, as Industrial Commissioner of the Department of Labor of the State of New York, Appellant, v Specialty Insulation Manufacturing Co., Inc., Respondent.
   —Appeal from a judgment of the Supreme Court at Special Term, entered November 8, 1978 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review and annul a determination of the Industrial Board of Appeals, dated April 11, 1978, that the respondent had no obligation to its employees to provide vacation pay for the year 1976. As noted by the board in its decision, the primary and dispositive issue in applying section 198-c of the Labor Law is whether or not there was any basis for the alleged accrual of vacation benefits. Subdivision 1 of section 198-c of the Labor Law specifically required "an agreement to pay or provide benefits or wage supplements”. The present record is devoid of any facts which would tend to establish that vacations were a matter of accrual on the basis of employment. The labor agreement between the respondent and the union representing its employees expressly requires that employees be in employment on the first day of January in each year. It is undisputed that an employee who was not in employment on January 1 of the current year did not receive any vacation pay or vacation time. Under such circumstances, petitioner has failed to show that the board erred and Special Term properly dismissed the petition. Judgment affirmed, with costs. Greenblott, J. P., Sweeney, Mikoll and Herlihy, JJ., concur; Main, J., not taking part. [96 Misc 2d 940.]  