Bergamini v. Manhattan and Bronx Surface Transit Operating Authority

• Decision Date: 12 June 1984
• Citation: 478 N.Y.S.2d 857,467 N.E.2d 521,62 N.Y.2d 897
• Parties: , 467 N.E.2d 521 In the Matter of Carl BERGAMINI, Respondent, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Appellant, et al., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 857

478 N.Y.S.2d 857

62 N.Y.2d 897, 467 N.E.2d 521

In the Matter of Carl BERGAMINI, Respondent, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY Appellant, et al., Respondent.

Court of Appeals of New York.

June 12, 1984.

Steve S. Efron, Richard K. Bernard and Carla Lowenheim, Brooklyn, for appellant

Eugene M. Kaufman, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 94 A.D.2d 441, 463 N.Y.2d 777, should be reversed, with costs, and the certified question answered in the negative.

As we have held in Collins v. Manhattan & Bronx Surface Tr. Operating Auth., 62 N.Y.S.2d 361, 477 N.Y.S.2d 91, 465 N.E.2d 811, MABSTOA is not required by section 6 of article V of the Constitution to make appointments and promotions on the basis of merit and fitness. Moreover, section 1203-a (subd. 3, par. ) of the Public Authorities Law expressly provides that employees of MABSTOA "shall not acquire civil service status". Employment by MABSTOA may, therefore, be terminated at any time, without a hearing and without reasons being stated, unless doing so would be violative of some other provision of the Constitution, a statute other than the Civil Service Law, or the provisions of a collective bargaining agreement or of an individual contract between the Authority and the employee (Matter of Stanziale v. Executive Dept., 55 N.Y.2d 735, 737, 447 N.Y.S.2d 150, 431 N.E.2d 635; Matter of Holbrook v. State Ins. Fund, 54 N.Y.2d 892, 894, 444 N.Y.S.2d 913, 429 N.E.2d 420; Matter of Hopkins v. Lefkowitz, 48 N.Y.2d 901, 424 N.Y.S.2d 897, 400 N.E.2d 1349; Matter of Anonymous v. Codd, 40 N.Y.2d 860, 387 N.Y.S.2d 1004, 356 N.E.2d 475; Matter of Talamo v. Murphy, 38 N.Y.2d 637, 639, 382 N.Y.S.2d 3, 345 N.E.2d 546; James v. Board of Educ., 37 N.Y.2d 891, 892, 378 N.Y.S.2d 371, 340 N.E.2d 735). It is, moreover, the burden of the employee to establish that termination of his employment violated such a constitutional, statutory or contractual provision (Matter of Bergstein v. Board of Educ., 34 N.Y.2d 318 323, 357 N.Y.S.2d 465, 313 N.E.2d 767; Haberman v. Codd, 48 A.D.2d 505, 508, 370 N.Y.S.2d 118).

Petitioner argues that his termination violated his constitutional rights of due process and free speech and constituted a "stigma" entitling him to a hearing. He suggests further that his right to a hearing is implicit in MABSTOA's employment procedures. No issue of free speech or of stigma is pleaded in the petition, nor with respect to stigma has petitioner pleaded that there was public disclosure constituting "dissemination" (Matter of Lentlie v. Egan,...