Burke v. Axelrod
| Decision Date | 07 October 1982 |
| Citation | 90 A.D.2d 577,456 N.Y.S.2d 135 |
| Court | New York Supreme Court — Appellate Division |
| Parties | In the Matter of William M. BURKE, Appellant, v. David AXELROD, as Commissioner of Health of the State of New York, et al., Respondents. |
William M. Burke, Troy, appellant pro se.
Robert Abrams, Atty. Gen. (Carl E. Stephan, Asst. Atty. Gen., of counsel), for respondents.
Before MAHONEY, P.J., and SWEENEY, KANE, WEISS and LEVINE, JJ.
Appeal from a judgment of the Supreme Court at Special Term (Pitt, J.), entered April 27, 1981 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to annul determinations of the Civil Service Commission regarding the classification of certain civil service positions.
The New York State Department of Health, Office of Health Systems Management (OHSM) made three separate requests to the Civil Service Commission for classifications affecting six positions in the Office of Counsel. The first request, made on August 22, 1977, was for exempt classification for two new positions of Assistant Counsel. This request was approved by the Civil Service Commission on May 24, 1978. On February 22, 1979, OHSM made a second request for reclassification of two competitive positions to the title of Associate Counsel in the noncompetitive class. The commission, on July 17, 1979, approved this noncompetitive classification for a two-year period ending June 1, 1981. Meanwhile, on March 14, 1979, OHSM had made a third request for the creation of two additional exempt class positions of Assistant Counsel. The commission also approved this request on July 17, 1979.
Petitioner, a permanent Senior Attorney in the Office of Counsel, New York State Department of Health, and an eligible on a certified list for appointment to the position of Associate Attorney, declared himself aggrieved by the above-enumerated determinations of the Civil Service Commission on the ground that such decisions denied him and others on the certified list promotional opportunities in violation of the Civil Service Law and the Constitution of the State of New York. Accordingly, on August 6, 1979, petitioner commenced this CPLR article 78 proceeding challenging all three determinations of the commission. Pursuant to a motion to dismiss the petition, Special Term granted the motion with respect to the May 24, 1978 determination holding that it was barred by the four-month Statute of Limitations set forth in CPLR 217. After the incumbents in the positions in controversy were joined as necessary parties, issue was joined and petitioner moved to transfer the matter to a Trial Term of the Supreme Court (CPLR 7804, subd. [h] ). Respondents cross-moved for summary determination on the pleadings and supporting papers. Special Term denied petitioner's motion for removal and dismissed the petition. This appeal by petitioner ensued.
Initially, we note that petitioner's notice of appeal is from an order of Special Term entered April 27, 1981 which denied petitioner's application to remove the matter to a trial part of the Supreme Court and dismissed the petition. Although CPLR 5501 (subd. [a], par. 1) specifies that an appeal from a final judgment brings up for review "any non-final judgment or order which necessarily affects the final judgment" , the prior order of Special Term dismissing part of the petition was final with respect to the two exempt positions approved by the commission on May 24, 1978. Where an intermediate order dismisses one of several causes of action or one of several challenges to distinct and multiple determinations of an administrative agency, as here, such order impliedly severs the struck action or challenge from the remainder of the complaint or petition (see Sirlin Plumbing Co. v. Maple Hill Homes, 20 N.Y.2d 401, 283 N.Y.S.2d 489, 230 N.E.2d 394). Accordingly, the propriety of Special Term's earlier ruling dismissing that portion of the petition seeking to challenge the commission's May 24, 1978 order is not properly before us on this appeal.
We now turn to petitioner's argument regarding the merits of the two remaining determinations made by the Civil Service Commission on July 17, 1979. The scope of judicial review in a CPLR article 78 proceeding against the Civil Service Commission has been held to be limited to a determination of whether the commission's action was arbitrary and capricious (Matter of Grossman v. Rankin, 43 N.Y.2d 493, 502-503, 402 N.Y.S.2d 373, 373 N.E.2d 267). The judicial review necessary to decide whether a determination of...
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...Appellate Division, under Article 78 of the New York Civil Practice Law and Rules (McKinney 1981). See, e.g., Burke v. Axelrod, 90 A.D.2d 577, 456 N.Y.S.2d 135 (3d Dept.1982); Adelman v. Bahou, 85 A.D.2d 862, 446 N.Y.S.2d 500 (3d Dept.1981) app. denied 56 N.Y.2d 502, 450 N.Y.S.2d 1023, 435 ......
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Alberti v. County of Nassau
...expertise or personal qualities which cannot be measured by a competitive exam." Savage, 850 F.2d at 69 (quoting Burke v. Axelrod, 90 A.D.2d 577, 456 N.Y.S.2d 135, 137 (1982)). Thus, although employees are not automatically exempted from First Amendment protection just because they are exem......
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Tranello v. Frey, Civ. No. 88-464L.
...or personal qualities which cannot be measured by a competitive exam.'" Savage, 850 F.2d at 69 (quoting Burke v. Axelrod, 90 A.D.2d 577, 578, 456 N.Y.S.2d 135, 137 (3d Dep't 1982)). Consequently, plaintiff's position, as a matter of law, was of a confidential, policymaking nature. Since the......
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