Alston v. Bertoni

• Decision Date: 14 April 2016
• Docket Number: 521686.
• Citation: 2016 N.Y. Slip Op. 02897,138 A.D.3d 1304,29 N.Y.S.3d 671
• Parties: In the Matter of Scott ALSTON et al., Appellants, v. John BERTONI et al., Respondents.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1304

29 N.Y.S.3d 671

2016 N.Y. Slip Op. 02897

In the Matter of Scott ALSTON et al., Appellants,

v.John BERTONI et al., Respondents.

521686.

Supreme Court, Appellate Division, Third Department, New York.

April 14, 2016.

Tuttle Law Firm, Latham (James B. Tuttle of counsel), for appellants.

Coughlin & Gerhardt LLP, Binghamton (Edward O. Sweeney of counsel), for respondents.

Before: McCARTHY, J.P., EGAN JR., ROSE, DEVINE and CLARK, JJ.

DEVINE, J.

Appeal from a judgment of the Supreme Court (Lebous, J.), entered November 24, 2014 in Broome County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Michael Cox assigning petitioners Scott Alston, Michael McEwan and James Surdoval to perform patrol duties.

Petitioners Scott Alston, Michael McEwan and James Surdoval (hereinafter collectively referred to as the detectives) are detectives employed by the Village of Endicott Police Department. Due to a perceived increase in criminal activity, respondent John Bertoni, the Mayor of respondent Village of Endicott, directed respondent Michael Cox, the Police Chief, to assign detectives to patrol duty. Cox complied with the directive and, beginning in October 2014, the detectives “work[ed] part of [their] normal work week, during [their] normal work hours, in uniform on patrol.” The detectives and their union, petitioner Endicott Police Benevolent Association, Inc., commenced this CPLR article 78 proceeding to challenge the patrol duty assignment. Following joinder of issue, Supreme Court found that the assignment was permissible and dismissed the petition. Petitioners appeal, and we now affirm.

The detectives have been permanently appointed to their positions, and there is no dispute that they are entitled to “the higher salaried, preferred status of detective” (Matter of Wood v. Irving, 85 N.Y.2d 238, 245, 623 N.Y.S.2d 824, 647 N.E.2d 1332 [1995] ; see Civil Service Law § 58[4][c], as added by L 1997, ch. 134, § 1). Moreover, because the detectives have held their positions for more than three years (see Civil Service Law § 75[1][e] ), they may “not be removed or otherwise subjected to any disciplinary penalty provided in [Civil Service Law § 75 ] except for incompetency or misconduct shown after a hearing upon stated charges” (Civil Service Law § 75[1] ).

Petitioners suggest that the assignment of the detectives to patrol duty on a limited basis violated Civil Service Law §§ 58 and 75 by forcing them to perform work “beneath their rank and title” without a hearing.¹ The detectives have not been deprived of their positions as a result of the assignment, however, nor have their pay or benefits been affected in any way by it. Accordingly, because Civil Service Law § 58 only guarantees that the detectives will “be permanently designated as ... detective[s] ... and receive the compensation ordinarily paid to persons in such designation,” its provisions are not implicated by the assignment here (Civil Service Law § 58 [4] [c][ii] ; cf. Matter of Pleakis v. Peterson, 281 A.D.2d 910, 911, 722 N.Y.S.2d 458 [2001] ). It is also well settled that an employee's displeasure with a work assignment, absent an impact on his or her civil service grade or title, salary or benefits, does not implicate Civil Service Law § 75 (see Matter of Galatti v. County of Dutchess, 64 N.Y.2d 1163, 1165, 491 N.Y.S.2d 89, 480 N.E.2d 678 [1985] ; Matter of Pelt v. New York City Hous. Auth., 199 A.D.2d 26, 26, 605 N.Y.S.2d 11 [1993] ; Matter of Sellstrom v. City of Rye, 143 A.D.2d 757, 757 [1988] ). Thus, we agree with Supreme Court that the patrol assignment did not run afoul of either statute.

Petitioners lastly argue that the assignment itself was arbitrary and capricious but, inasmuch as “no [demotion] or change of grade was involved, the assignments of the [detectives] were within the sole discretion of” the appointing officer (Matter of Detective Endowment Assn., Police Dept., City of N.Y. v. Leary, 36 A.D.2d 289, 291, 320 N.Y.S.2d 253 [1971], affd. 30 N.Y.2d 577, 330 N.Y.S.2d 794, 281 N.E.2d 842 [1972] ; see Village Law § 4–400[1][c], [e] ; Matter of Sellstrom v. City of Rye, 143 A.D.2d at 757, 533 N.Y.S.2d 304 )....