Hondzinski v. Erie County

• Decision Date: 13 July 1978
• Citation: 407 N.Y.S.2d 364,64 A.D.2d 864
• Parties: Robert S. HONDZINSKI, Appellant, v. COUNTY OF ERIE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 364

407 N.Y.S.2d 364

64 A.D.2d 864

Robert S. HONDZINSKI, Appellant, v. COUNTY OF ERIE et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

July 13, 1978.

Offermann, Fallon, Mahoney, Cassano & Geller, Buffalo, by Francis J. Offermann, Buffalo, for appellant.

Thaddeus J. Szymanski, County Atty., Buffalo, by Michael Connors, Buffalo, for respondents.

Before CARDAMONE, J. P., and SIMONS, HANCOCK, DENMAN and WITMER, JJ.

MEMORANDUM:

In this CPLR Article 78 proceeding petitioner alleged that he was appointed as a jail guard in the Department of the Erie County Sheriff, a respondent, in August 1959 on a permanent basis and continued therein until November 1964 when he was appointed on a permanent basis as a court deputy sheriff assigned to the Erie County Court, in which position he continued until January 1971 when he was appointed on a permanent basis as a criminal deputy sheriff of respondent and assigned to the Erie County Jail. For budgetary reasons respondents reduced the number of Sheriff's deputies, effective December 31, 1976, in inverse order to their seniority status in the Sheriff's office (see Civil Service Law, § 80, subd. 1) according to respondents' computation, and terminated petitioner's employment. Petitioner asserts that he has seniority over several deputies who were retained. This petition was brought to review and annul respondents' determination. Without answering, respondents moved for dismissal of the petition for failure to state a cause of action, and petitioner appeals from the judgment granting that motion.

Although the motion recited that it was brought under subdivision (c) of CPLR 3211, the statute required that it be brought under subdivision (f) of CPLR 7804, which provides for motions upon objection in point of law to an Article 78 petition. Such a motion is tantamount to a demurrer, assumes the truth of the allegations of the petition, and permits no consideration of facts alleged in support of the motion (Matter of Mattioli v. Casscles, 50 A.D.2d 1013, 377 N.Y.S.2d 264 (3d Dept.); Matter of Tipton v. Suffolk County Civ. Serv. Comm., 43 A.D.2d 841, 351 N.Y.S.2d 170 (2d Dept.); Matter of Lichtensteiger v. Housing and Development Administration, 40 A.D.2d 810, 338 N.Y.S.2d 201 (1st Dept.); Matter of Grimm v. City of Buffalo, 8 A.D.2d 689, 184 N.Y.S.2d 868 (4th Dept.); 24 Carmody-Wait. 2d, § 145:314-315 and supplement). Although there has been some criticism of the fact that CPLR 7804(f) does not follow the pattern of CPLR 3211(c) (see 24 Carmody-Wait 2d, § 145:321; 8 Weinstein-Korn-Miller, N.Y.Civ.Prac. par. 7804:08; McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 404:1, p. 503), that issue is of no moment here. Even subdivision (c) of CPLR 3211 requires that if the court intends to treat the motion as one for summary judgment, it must give "adequate notice to the parties" that it so intends (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 316, 357 N.E.2d 970, 972; Matter of White, 35 A.D.2d 933, 316 N.Y.S.2d 516), and Special Term failed to do this. Thus, the legal validity of the petition was the sole question properly before Special Term.

Respondents' argument that petitioner was not prejudiced thereby because the court only considered the petition and statutes and local laws of which it could take judicial notice, is without merit. Except by considering facts not contained in the petition, Special Term had no basis for concluding that petitioner was not permanently employed from August 1959 to 1971 as a deputy sheriff having only criminal duties. The significance of that fact lies in the state of the law in this special area.

In Flaherty v. Milliken, 193 N.Y. 564, 86 N.E. 558 (1908) the court held that an employee engaged exclusively in criminal work in the sheriff's office was doing work classified under the Civil Service Law, but one engaged in civil work for the sheriff was his personal employee and not in so-called classified service. In 1969 the legislative body of Erie County enacted Local Law No. 2 which provided that "(a)ll deputies * * * of the sheriff of Erie County except the Under Sheriff * * * and his civil deputies, are hereby placed in the competitive classified service and shall be hired...