O'Brien v. Yugartis

• Decision Date: 11 May 2017
• Citation: O'Brien v. Yugartis, 150 A.D.3d 1441, 55 N.Y.S.3d 481 (N.Y. App. Div. 2017)
• Parties: In the Matter of Timothy J. O'BRIEN, Respondent, v. Steven YUGARTIS, as Mayor of the Village of Potsdam, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1441

55 N.Y.S.3d 481

In the Matter of Timothy J. O'BRIEN, Respondent,

v.Steven YUGARTIS, as Mayor of the Village of Potsdam, et al., Appellants.

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

May 11, 2017.

Lemire Johnson & Higgins, LLC, Malta (April J. Laws of counsel), for appellants.

David M. Lenney, Clifton Park, for respondent.

Before: PETERS, P.J., MCCARTHY, EGAN Jr., MULVEY and AARONS, JJ.

AARONS, J.

Appeal from that part of a judgment of the Supreme Court(Main Jr., J.), entered March 9, 2016 in St. Lawrence County, which, in a combined proceeding pursuant to CPLR article 78 and an action for declaratory judgment, partially granted petitioner's motion for summary judgment, reinstated petitioner to his former position of full-time Code Enforcement Officer and awarded him back wages.

RespondentVillage of Potsdam employed petitioner as a part-time Code Enforcement Officer (hereinafter CEO).On May 30, 2011, petitioner took on the role of full-time CEO, but he was subsequently terminated from that position on May 30, 2012.After serving a notice of claim in June 2012, petitioner commenced this hybrid CPLR article 78 proceeding and action for declaratory judgment in September 2012, alleging, among other things, that his constitutional rights were violated and seeking annulment of the decision to terminate his employment.After the matter was removed to federal court, petitioner filed an amended petition/complaint seeking, among other things, reinstatement to his position of full-time CEO or, alternatively, reinstatement to the position of part-time CEO.Upon respondents' motion for summary judgment, the federal court dismissed the fourth cause of action in the amended petition/complaint alleging a constitutional violation.The federal court also declined supplemental jurisdiction over the remaining state law claims and the matter was remanded to Supreme Court.Upon remand, petitioner moved, and respondents cross-moved, for summary judgment.Supreme Court, among other things, granted petitioner's motion as to the first cause of action and reinstated petitioner to the position of full-time CEO with back pay and dismissed, as moot, petitioner's alternative request for reinstatement to the position of part-time CEO (fifth cause of action).Respondents now appeal from so much of the judgment as it pertains to the first and fifth causes of action.

A probationary employee may be dismissed from his or her employment without a hearing and without a statement of reasons (seeMatter of Hanson v. Crandell, 141 A.D.3d 982, 985, 36 N.Y.S.3d 298[2016];Matter of Higgins v. La Paglia, 281 A.D.2d 679, 680, 722 N.Y.S.2d 592[2001], appeal dismissed96 N.Y.2d 854, 729 N.Y.S.2d 669, 754 N.E.2d 772[2001];Matter of Weir v. State of N.Y. Thruway Auth.,231 A.D.2d 836, 837, 647 N.Y.S.2d 870[1996];see generallyMatter of York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838[1984] ).As relevant here, the Rules for the Classified Civil Service of St. Lawrence County(hereinafter the St. Lawrence Rules), which have the force and effect of law (seeMatter of Colao v. Village of Ellenville, 223 A.D.2d 792, 793, 636 N.Y.S.2d 446[1996], lv. dismissed and denied87 N.Y.2d 1041, 644 N.Y.S.2d 137, 666 N.E.2d 1050[1996] ), delineate the duration of a probationary period depending on whether an employee was transferred or appointed to his or her position.Respondents contend that, because petitioner was appointed and not, as Supreme Court found, transferred to his position of full-time CEO, petitioner was subject to a 12–month probationary period and, accordingly, his termination on May 30, 2012, which was during his probationary period, was proper.We agree with respondents.

Assuming, without deciding, that the statements in petitioner's notice of claim regarding his probationary period did not constitute judicial admissions, the record nonetheless demonstrates that petitioner was appointed, and not transferred, to his position of full-time CEO.The St. Lawrence Rules define "transfer" as "the change, without further examination, of a permanent employee from a position under the jurisdiction of one appointing authority to a similar position under the jurisdiction of another appointing authority or to a similar position under the jurisdiction of the same appointing authority"(Rules for the Classified Civil Service of St. Lawrence County, Rule I[7][2011] ).Transferees are subject to a three-month probationary period (see Rules for the Classified Civil Service of St. Lawrence County, Rule XIV [2][b] ).

Here, even though petitioner may have performed similar duties in his capacity as a full-time and a part-time CEO, David Fenton, the Village Administrator, explained in his affidavit that the position of part-time CEO was not similar to the position of full-time CEO.Fenton stated that the full-time CEO, unlike the part-time CEO, must be hired from the civil service list.While the part-time CEO position can be filled by someone who took and passed a civil service test, it is unnecessary for such hired person to come from the civil service list.Furthermore, the full-time CEO has a higher hourly pay rate as compared to the part-time CEO and has limited supervisory powers over the part-time CEO.

The documentary evidence also reflects that petitioner was appointed, and not transferred, to the position of full-time CEO.In this regard, when petitioner assumed his position as the full-time CEO, the corresponding resolution "approv[ed] the probationary appointment of [petitioner]" effective May 30, 2011, and the report of personnel change specifically marked a box stating...