MATTER OF LEBRUN v. McGuire

• Decision Date: 06 August 2003
• Citation: 196 Misc.2d 874,764 N.Y.S.2d 565
• Parties: In 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.
• Court: New York Supreme Court

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.

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 DMNA employee, petitioner is not entitled to any protection under the Civil Service Law, and as petitioner's termination is a matter of military policy, petitioner's claim is not justiciable. In opposition, petitioner counters that the handbook stated that certain categories of M/C employees were entitled to Taylor Law protection and that he fits into one of these categories.

At the outset, DMNA is a public employer within the purview of the Taylor Law (see, Civil Service Law § 201 [6]; Matter of State of New York v Public Empl. Relations Bd., 103 AD2d 876). Further, petitioner is a public employee as he holds a position by appointment in the employment of a public employer (see, Civil Service Law § 201 [7] [a]; Matter of State v Public Empl. Relations Bd., supra). The fact that employees of DMNA are not considered to be in the civil service of the State is not dispositive inasmuch as nothing in the Taylor Law limits its protection to public employees in the civil service (see, Matter of State v Public Empl. Relations Bd.). Contrary to respondents' contention, therefore, petitioner is not excepted from Civil Service Law protection simply because he is an employee of DMNA (id.). Rather, Civil Service Law § 201 (7) (a) only excepts from Taylor Law protection, as relevant here, employees who hold positions by appointment or employment in the organized militia of the State, or are designated as managerial or confidential (see, id.). The organized militia is comprised of "the New York army national guard; the New York air national guard; the inactive national guard; the New York naval militia; the New York guard whenever such a state force shall be duly organized and such additional forces as may be created by the governor" (Military Law § 2 [1]). Thus, petitioner's position as a civilian airport firefighter is not contained within the organized militia and, therefore, he is not exempt...