Civil Service Employees Ass'n, Inc. v. Town of Riverhead

• Decision Date: 02 October 1995
• Citation: 220 A.D.2d 411,631 N.Y.S.2d 883
• Parties: In the Matter of CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., etc., et al., Petitioners, v. TOWN OF RIVERHEAD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 883

631 N.Y.S.2d 883

220 A.D.2d 411

In the Matter of CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., etc., et al., Petitioners, v. TOWN OF RIVERHEAD, Respondent.

Supreme Court, Appellate Division, Second Department.

Oct. 2, 1995.

Vitale, Levitt, & McCarthy, P.C., Huntington (Howard E. Gilbert, of counsel), for petitioners.

Rains & Pogrebin, P.C., Mineola (Richard K. Zuckerman and Sharon N. Berlin, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, BALLETTA and HART, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review so much of a determination of the respondent Town of Riverhead, dated June 26, 1992, as, after a hearing, upheld the denial of emergency personal leave sought by the petitioner Nancy Morrow.

ADJUDGED that the determination is confirmed insofar as reviewed and the proceeding is dismissed on the merits, with costs.

Initially, we note that the Supreme Court should have disposed of the proceeding on the merits instead of transferring it to this court. Because the hearing was "informational", the determination was not "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law" (CPLR 7803[4], 7804[g]; see also, Matter of City of New York Dept. of Envtl. Protection v. Department of Envtl. Conservation of State of N.Y., 120 A.D.2d 166, 508 N.Y.S.2d 643). However, this court will decide the case on the merits in the interest of judicial economy (see, Matter of 125 Bar Corp. v. State Liq. Auth. of State of N.Y., 24 N.Y.2d 174, 180, 299 N.Y.S.2d 194, 247 N.E.2d 157).

Contrary to the petitioners' contention, the respondent's determination was not arbitrary or capricious since it was rationally based on the facts before it (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321). Further, insofar as the petition sought to resolve the parties' contractual rights, it is well settled that a CPLR article 78 proceeding is not the proper procedural vehicle (see, Matter of Hertz v. Rozzi, 148 A.D.2d 535, 538 N.Y.S.2d 867, affd. 74 N.Y.2d 702, 543 N.Y.S.2d 390, 541 N.E.2d 419; Aloi v. Board of Educ., 81 A.D.2d 874, 439 N.Y.S.2d 169; Nassau Ch. Civ. Serv. Employees Assn. v. County of Nassau, 154 Misc.2d 545, 585 N.Y.S.2d 966, affd. 203 A.D.2d 267, 612 N.Y.S.2d 880).