Burke v. Sugarman

• Decision Date: 15 July 1974
• Citation: 358 N.Y.S.2d 715,35 N.Y.2d 39,315 N.E.2d 772
• Parties: , 315 N.E.2d 772 In the Matter of Joseph M. BURKE et al., Appellants, v. Jule SUGARMAN, as Commissioner of the Department of Social Services and Administrator of the Human Resources Administration of the City of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 715

358 N.Y.S.2d 715

35 N.Y.2d 39, 315 N.E.2d 772

In the Matter of Joseph M. BURKE et al., Appellants, v. Jule SUGARMAN, as Commissioner of the Department of Social Services and Administrator of the Human Resources Administration of the City of New York et al., Respondents.

Court of Appeals of New York.

July 15, 1974.

A. Bernard King, New York City, for appellants.

Adrian P. Burke, Corp. Counsel, New York City (Irving Cohen and Milton H. Harris, New York City, of counsel), for respondents.

BREITEL, Chief Judge.

In an article 78 proceeding, petitioners, candidates for promotion on an eligible list, alleged that city administrative agencies had ignored the applicable list in making appointments or designations to the position of Supervisor III (Welfare) in the New York City Department of Social Services. Petitioners appeal as of right on constitutional grounds from an order affirming the judgment dismissing the petition for failure to state a claim and laches.

There should be a reversal. Petitioners having passed a civil service examination and having been placed on an eligible list for appointment have standing to seek removal of persons allegedly appointed or designated contrary to law.

Petitioners initiated the proceeding approximately two weeks before expiration of the eligible list. Respondents served no answer, but moved to dismiss the petition on objections in point of law (CPLR 7804, subd. (f)). The allegations of fact in the petition are therefore accepted for present purposes as true.

In June of 1968 petitioners, each holding the title of Supervisor II (Welfare) in the New York City Department of Social Services, having passed a civil service promotion examination for Supervisor III, were placed on the eligible list. They were respectively ranked 222, 233 and 271 on the list. The last promotion from the eligible list was made in December of 1970, in favor of an eligible ranking 185. Since then at least 37 appointments or designations to the position of Supervisor III (Welfare), variously described as 'acting', 'provisional', and 'temporary', have been made from outside the list or without regard to the ranking on the list. Some of these 37 persons continue to serve in the contested positions.

The allegations, if true, support a contention that the appointments or designations were contrary to law (see N.Y.Const., art. V, § 6; Civil Service Law, § 61, Consol.Laws, c. 7; N.Y.City Civ.Serv.Comm. Rules & Reg., § 4.7.2). There remains only the question whether petitioners have standing to sue and if laches bars the proceeding.

In Matter of Cash v. Bates, 301 N.Y. 258, 261, 93 N.E.2d 835, 836, petitioners, veterans with disabilities of 10% Or more, who had passed a civil service examination for the position of motor vehicle license examiner and were entitled to a preference, challenged the appointment of other veterans with no recognized disability (0%) who had also passed the same examination but were not entitled to a preference. The rationale in the Cash case, however, was broader than required by its facts, in that it granted petitioners standing, not because of their personal circumstances but 'because as citizens and taxpayers they are entitled to an opportunity to insist upon the construction which this court placed upon the civil service article of the State Constitution'. In Matter of Donohue v. Cornelius, 17 N.Y.2d 390, 397, 271 N.Y.S.2d 231, 234, 218 N.E.2d 285, 287, the rationale in the opinion was also broader than required by its facts and was inconsistent with that expressed in the Cash case; notably it made no reference to Cash or its reasoning.

The petitioner in the Donohue case, at the commencement of that proceeding, was a member of the State Police and had not yet taken a promotion examination for sergeant, the validity of which was an issue in the proceeding. By the time the appeal was heard, petitioner, a highly-publicized dissident, had successfully passed the examination, but had also been dismissed from the State Police for cause. In consequence, the court in the Donohue case concluded that it was, in ultimate effect, confronted with a private citizen's attempt to annul a civil service examination (at p. 396, 271 N.Y.S.2d at p. 233, 218 N.E.2d at p. 287). Relying on St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15, the court held that the petitioner was not personally aggrieved, he no longer being a member of the State Police and therefore without standing. It expressly stated that a private citizen had no standing, classifying the problem as one involving an attack on State action like any other.

St. Clair, not involving the civil service, had held that a taxpayer was without standing to challenge the validity of a statutory reduction of pari-mutuel tax rates. Its majority opinion cited neither Matter of Cash v. Bates (supra) nor Matter of Andresen v. Rice, 277 N.Y. 271, 281, 14 N.E.2d 65, 69, cases in which standing had been granted persons, as citizens and taxpayers, to challenge alleged violations of the constitutional provisions governing the civil service. Moreover, had petitioner in Donohue remained a member of the State Police and failed the promotion examination, there must have been a different result, because persons who fail an examination would be personally aggrieved by an unlawful examination. A fortiori, persons who pass an examination and are on an eligible list have standing to challenge unlawful appointments or designations to positions for which the list has been established.

Of course, the holding and rationale in the Do...