MATTER OF LEBRUN v. McGuire

CourtUnited States State Supreme Court (New York)
Citation196 Misc.2d 874,764 N.Y.S.2d 565
Decision Date06 August 2003
PartiesIn the Matter of CHARLES J. LEBRUN, Petitioner,<BR>v.<BR>THOMAS P. McGUIRE, JR., as Adjutant General of the State of New York Division of Military and Naval Affairs, et al., Respondents.

196 Misc.2d 874
764 N.Y.S.2d 565

In the Matter of CHARLES J. LEBRUN, Petitioner,
v.
THOMAS P. McGUIRE, JR., as Adjutant General of the State of New York Division of Military and Naval Affairs, et al., Respondents.

August 6, 2003.


Eliot Spitzer, Attorney General, Albany (Krista Zinser of counsel), for respondents.

Esseks, Hefter, Angel, Riverhead (William P. Maloney of counsel), for petitioner.

OPINION OF THE COURT

LOUIS C. BENZA, J.

Respondents move this court to dismiss petitioner's CPLR article 78 application for failure to state a cause of action and that his claims are nonjusticiable pursuant to CPLR 3211 (a) (7). Petitioner opposes such relief.

[196 Misc.2d 875]

Between April 1993 through March 2003, petitioner was employed as a civilian employee of respondent State of New York Division of Military and Naval Affairs (hereinafter DMNA) as an Airport Firefighter 3 at Suffolk Air National Guard Base in Suffolk County. Petitioner's position was classified as Management/Confidential (M/C)-19 and, as such, he was not permitted to be a union member. At the time of his promotion to Airport Firefighter 3, petitioner received the Handbook for Management/Confidential Employees (hereinafter handbook). The handbook was revised in 1997. This version stated that while M/C employees are not protected by the Taylor Law for union representation, many of the same benefits applied to M/C employees. Further, the handbook stated that Civil Service Law § 75 outlines the rights of M/C employees subject to disciplinary action, including rights to representation and a hearing on stated charges. The handbook stated, however, that only specified M/C employees were entitled to these protections, including exempt volunteer firefighters as defined in the General Municipal Law and employees with five continuous years of service who do not hold confidential positions or influence policy. In December 1994 and September 1995, petitioner received two notices of discipline advising him of alleged misconduct and the grievance procedure. These notices resolved favorably for petitioner. Thereafter, in March 2003, without prior notice or warning, petitioner received a termination notice from respondent Thomas P. McGuire. Petitioner subsequently commenced the instant CPLR article 78 proceeding alleging that, prior to his termination, he was not provided with, inter alia, a hearing pursuant to the grievance procedure as outlined in his employee handbook.

Respondents now move to dismiss the petition contending that as a...

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