Pavone v. Barclay

• Decision Date: 15 April 1985
• Parties: Robert PAVONE, Respondent, v. Hartley W. BARCLAY, Jr., etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 841

487 N.Y.S.2d 841

110 A.D.2d 758

Robert PAVONE, Respondent, v. Hartley W. BARCLAY, Jr., etc., et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

April 15, 1985.

Samuel S. Yasgur, County Atty., White Plains (Lester D. Steinman, White Plains, and Andrea L. McArdle, Mount Vernon, of counsel), for appellants.

Gerald M. Klein, Town Atty., Montrose (Thomas F. Wood, Montrose, of counsel), for respondent.

Before MOLLEN, P.J., and GIBBONS, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a CPLR article 78 proceeding, the appeal, as limited by the appellants' brief, is from so much of a judgment of the Supreme Court, Westchester County, entered May 19, 1983, as directed Hartley W. Barclay, Jr., in his capacity as Personnel Officer of the County of Westchester, to certify the name of Robert Pavone on the payroll of the Town of Cortlandt as Chief of Police.

Judgment reversed insofar as appealed from, on the law, without costs or disbursements, and proceeding dismissed on the merits.

On May 15, 1979, petitioner Robert Pavone was duly appointed to the position of part-time policeman for the Town of Cortland in Westchester County in accordance with the Laws of 1936 (ch. 104, § 18, as amended by L.1959, ch. 175). Petitioner was subsequently re-appointed to that position on January 1, 1980 and again on January 6, 1981. On May 19, 1981, following his successful completion of the competitive examination for the position of court attendant, his title was officially changed to that of "Part-time Patrolman/Court Attendant". It is apparently undisputed that the petitioner was and still is the only year-round law enforcement officer regularly employed by the Town of Cortlandt, and that the position of part-time policeman is a noncompetitive position which is authorized in those towns in Westchester County which do not have police departments established pursuant to the aforementioned Laws of 1936 (ch. 104, § 18, as amended by L.1959, ch. 175).

On January 1, 1982, pursuant to the power granted by section 2 of chapter 104 of the Laws of 1936, the Town Board of Cortlandt resolved to establish a formal police department, and, in the purported exercise of its power so to do, appointed the petitioner its sole policeman and chief of the department. The Personnel Officer of the County of Westchester was thereafter duly notified of the appointment, but by letter dated October 25, 1982, he refused to certify the petitioner on the ground, inter alia, that his appointment was not in compliance "with either the Civil Service Law * * * or the Special Legislation [L.1936, ch. 104] that governs police appointments in various [Town] Police Departments" in Westchester County. The Supreme Court, Westchester County, took a contrary view in granting the within application to compel the Personnel Officer to certify the petitioner's appointment, and this appeal followed.

We now reverse.

It is settled in New York that an incumbent may retain his position without the necessity of taking a competitive examination when his position is reclassified from the noncompetitive to the competitive class of the civil service, provided only that his initial appointment was legal when made (see Amico v. Erie County Legislature, 36 A.D.2d 415, 425, 321 N.Y.S.2d 134, affd. 30 N.Y.2d 729, 332 N.Y.S.2d 898, 283 N.E.2d 769; Matter of Jampol v. Finegan, 167 Misc. 823, 4 N.Y.S.2d 825, affd. sub nom. Matter of Jampol v. Kern, 254 App.Div. 733, 6 N.Y.S.2d 91, affd. 280 N.Y. 659, 20 N.E.2d 1018; Matter of Borrell v. County of Genesee, 73 A.D.2d 386, 426 N.Y.S.2d 361; Matter of Kinsella v. Kern, 168 Misc. 847, 6 N.Y.S.2d 854, affd. 254 App.Div. 834, 6 N.Y.S.2d 334). The foregoing does not pertain where the alleged "reclassification", in reality, operates as a promotion (see Matter of Goldhirsch v. Krone, 18 N.Y.2d 178, 272 N.Y.S.2d 765, 219 N.E.2d 282; Matter of Niebling v Wagner, 12 N.Y.2d 314, 239 N.Y.S.2d 537, 189 N.E.2d 805; Matter of Jones v. McCoy, 44 A.D.2d 742, 354 N.Y.S.2d 462, affd. 37 N.Y.2d 932, 379 N.Y.S.2d 841, 342 N.E.2d 602; ...