Burke v. Carey

• Decision Date: 04 June 1981
• Citation: 82 A.D.2d 953,440 N.Y.S.2d 773
• Parties: In the Matter of John W. BURKE et al., On Behalf of Themselves and All Others Similarly Situated, Respondents, v. Hugh L. CAREY, as Governor of the State of New York, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 773

440 N.Y.S.2d 773

82 A.D.2d 953

In the Matter of John W. BURKE et al., On Behalf of

Themselves and All Others Similarly Situated, Respondents, v. Hugh L. CAREY, as Governor of the State of New York, et al.,

Appellants.

Supreme Court, Appellate Division,

Third Department.

June 4, 1981.

Robert Abrams, Atty. Gen. (John Q. Driscoll, Asst. Atty. Gen., of counsel), for appellants.

Rowley & Forrest, Albany (Richard R. Rowley, Albany, of counsel), for respondents.

Before MAHONEY, P. J., and SWEENEY, KANE, CASEY and WEISS, JJ.

MEMORANDUM DECISION.

Appeal, by permission, from an order of the Supreme Court at Special Term, entered January 21, 1981 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied a motion to dismiss the petition upon objections in point of law.

Between April 18, 1979 and May 4, 1979, members of the Security Services Unit of the New York Inspection, Security and Law Enforcement Employees Union allegedly engaged in a strike at State correctional facilities. On July 20, 1979, pursuant to section 210 (subd. 2, par. of the Civil Service Law, respondent Meyer Frucher, Director of the Governor's Office of Employee Relations, notified all employees identified as being absent without authorization during the period of the strike that they were found to be in violation of the Civil Service Law on specified dates and advised them of their right to object to those determinations (Civil Service Law, § 210, subd. 2, par. [h]).

In response to that notice, approximately 6,500 affidavits, listing a variety of objections to the determinations, were filed by members of the Security Services Unit. Respondent Frucher's subsequent review of the affidavits demonstrated that some employees were not in violation and these employees were exonerated. Other employees were found to have raised a question of fact which warranted a hearing. A third group of employees' objections were dismissed without a hearing for failure to demonstrate that the law had not been violated.

Petitioners, members denied a hearing either in whole or in part, commenced this CPLR article 78 proceeding, alleging that they were arbitrarily and illegally denied hearings to which they were entitled pursuant to section 210 (subd. 2, par. of the Civil Service Law and in contravention of their due process rights under the State and Federal Constitutions. Respondents, prior to answer, made a motion to dismiss on objections in point of law (CPLR 7804, subd. Special Term denied the motion and respondents now appeal.

Respondents contend, inter alia, that since petitioners failed to raise triable issues of fact, Special Term erred in not dismissing the petition. We disagree. On review of a motion to dismiss on objections in point of law made prior to answer, only the petition can be considered (Matter of Mattioli v. Casscles, 50 A.D.2d 1013, 377 N.Y.S.2d 264), and the facts contained therein are deemed true (Matter of Burke v. Sugarman, 35 N.Y.2d 39, 42, 358 N.Y.S.2d 715, 315 N.E.2d 772). In the instant case, petitioners have made allegations in their petition which indicate that they were not in violation of section...