Dailey v. Allerton

• Decision Date: 09 June 1995
• Citation: 628 N.Y.S.2d 911,216 A.D.2d 865
• Parties: Matter of Thomas J. DAILEY, Individually and as President of the Fulton Police Benevolent Association, Inc., Respondent, v. Muriel ALLERTON, Mayor of City of Fulton, Board of Fire and Police Commissioners of City of Fulton and City of Fulton, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 911

628 N.Y.S.2d 911

216 A.D.2d 865

Matter of Thomas J. DAILEY, Individually and as President of

the Fulton Police Benevolent Association, Inc., Respondent, v. Muriel ALLERTON, Mayor of City of Fulton, Board of Fire and Police Commissioners of City of Fulton and City of

Fulton, Appellants.

Supreme Court, Appellate Division,

Fourth Department.

June 9, 1995.

Smith and Mirabito, P.C. by Jerome A. Mirabito, Fulton, for appellants.

Boyle and Cantone, Syracuse, for respondent, Earl P. Boyle, of counsel.

Before GREEN, J.P., and LAWTON, FALLON, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

Petitioner, a Fulton police officer and President of the Fulton Police Benevolent Association, Inc., commenced a CPLR article 78 proceeding to compel respondents to remove three individuals from their positions as Investigators in the City's police department (incumbent Investigators), and to submit a proposed duty statement for that position for classification, approval and certification to the City's Municipal Civil Service Commission (Commission), as required by Civil Service Law § 22.

In granting the petition, Supreme Court held that the City of Fulton had created a position designated as "Investigator" and that its charter, its collective bargaining agreement, and the Civil Service Law required it to refer that position to the Commission for review. The court rejected the argument of respondents that the incumbent Investigators could not be removed from their positions because they are protected under Civil Service Law § 75(1)(e). A judgment incorporating the court's decision was entered May 15, 1991, requiring respondents, inter alia, "to comply with the provisions of the Civil Service Law [s] 22, and other applicable provisions and to refer the Investigators positions to the Municipal Civil Service Commission for review." Respondents did not appeal from that judgment.

Respondents thereafter referred the Investigator position to the Commission for certification and a civil service examination was held, which resulted in an eligible list for appointment to the positions of Investigator. Only one of the incumbent Investigators was named on the eligible list. On November 16, 1992, in an obvious attempt to circumvent the results of the examination, the Board of Fire and Police Commissioners (Board) passed a resolution "[p]ursuant to Civil Service Law [s] 75.1(e)", granting the incumbent Investigators permanent status as Investigators based upon their three consecutive years of service in that position.

Petitioner moved pursuant to CPLR 5014 to hold respondents in contempt for failing to comply with the judgment. By order entered October 12, 1993, the court directed respondents to comply with the judgment within 30 days of service of the order by removing the two incumbent Investigators not named on the eligible list from the position and title of Investigator; ordered the City to fill the vacancies from the eligible list; annulled the resolution of the Board purporting to grant the incumbent Investigators permanent status; and permitted a further application for contempt in the event that respondents failed to comply. Respondents appeal from that order. We affirm.

There is no merit to the contention of respondents that the judgment required only that they comply with Civil Service Law § 22 and that it did not address the removal of the incumbent Investigators. Civil Service Law § 22 requires that a duty statement be referred to the appropriate municipal civil service commission for review and certification whenever a "new position in the service of a civil division shall be created". Respondents do not challenge the court's determination that the position of Investigator is a competitive class position. Additionally, respondents recognized the necessity of complying with the requirements of Civil...