Matter of Lamb v. Town of Esopus

• Decision Date: 14 December 2006
• Docket Number: 500798.
• Citation: 2006 NY Slip Op 09352,827 N.Y.S.2d 307,35 A.D.3d 1004
• Parties: In the Matter of DEBRA L. LAMB, Appellant, v. TOWN OF ESOPUS, Respondent.
• Court: New York Supreme Court — Appellate Division

35 A.D.3d 1004

827 N.Y.S.2d 307

2006 NY Slip Op 09352

In the Matter of DEBRA L. LAMB, Appellant, v. TOWN OF ESOPUS, Respondent.

500798.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided December 14, 2006.

Appeal from a judgment of the Supreme Court (McCarthy, J.), entered August 25, 2005 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondent to reinstate petitioner to her former position as a building department aide.

KANE, J.

Beginning in 2001, petitioner was employed by respondent as a building department aide. In January 2005, at its organizational meeting, respondent's Town Board adopted a resolution on appointment which created two part-time positions to replace petitioner's full-time position. Respondent contends that restructuring of its building department, to keep down costs and increase efficiency, required elimination of petitioner's full-time position. Petitioner commenced this proceeding seeking reinstatement to her former position, as well as back pay and benefits. Supreme Court dismissed the petition. On petitioner's appeal, we affirm.

Once respondent came forward with prima facie evidence that petitioner was not entitled to Civil Service Law protection, the burden shifted to petitioner to raise a triable issue of fact regarding her entitlement to such protection (see Matter of de Zarate v Thompson, 213 AD2d 713, 714 [1995]). Although petitioner was employed by respondent for a number of years and passed a civil service examination qualifying her for numerous clerical positions, she failed to present proof that she was employed in a noncompetitive class position for five continuous years (see Civil Service Law § 75 [1] [c]).

Even if petitioner did work in a protected position, respondent could eliminate her position for purposes of economy or efficiency (see Civil Service Law § 75 [1]; Matter of Mucci v City of Binghamton, 245 AD2d 678, 679 [1997], appeal dismissed 91 NY2d 921 [1998], lv denied 92 NY2d 802 [1998]). Petitioner bore the burden of establishing that the elimination of her position was motivated by bad faith or was a subterfuge, which can be accomplished by eliminating respondent's bona fide reasons (see Matter of Belvey v Tioga County Legislature, 257 AD2d 967, 968-969 [1999]; Matter of Mucci v City of Binghamton, supra at 679). While petitioner contends that respondent failed to prove a cost savings through its reorganization of the building department and elimination of her full-time position, respondent showed that the reorganization increased efficiency. The reorganization permitted respondent to hire a full-time building inspector by transferring the benefits previously provided to petitioner's position. Hiring several part-time workers also allowed the department to be open an additional 16 hours per week and not close during the lunch hour, thus increasing public access to the office. Petitioner failed to meet her burden of overcoming respondent's bona fide reasons for eliminating her position.

Petitioner...