Rosenthal v. Gilroy
| Citation | 208 A.D.2d 748,617 N.Y.S.2d 509 |
| Parties | In the Matter of Barbara F. ROSENTHAL, Appellant, v. Michael K. GILROY, etc., et al., Respondents. |
| Decision Date | 17 October 1994 |
| Court | New York Supreme Court — Appellate Division |
Lecci, Wolin & Wolin, Hicksville (Alan E. Wolin, of counsel), for appellant.
Bee and Eisman, Mineola (Peter A. Bee and Daniel E. Wall, of counsel), for respondents.
Before BALLETTA, J.P., and ROSENBLATT, MILLER and RITTER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Directors of the Nassau County Vocational Education and Extension Board dated July 14, 1992, which abolished the position of account clerk, the petitioner appeals from a judgment of the Supreme Court, Nassau County (DiNoto, J.), dated April 20, 1993, which dismissed the petition.
ORDERED that the judgment is reversed, with costs, and the matter is remitted to the Supreme Court for further proceedings consistent herewith.
The petitioner contends that the Supreme Court erred in dismissing her petition on the ground that there was no evidence of bad faith by the respondents in abolishing her position. We agree.
It is well-settled that a public employer may abolish civil service positions for the purposes of economy or efficiency (see, Matter of Aldazabal v. Carey, 44 N.Y.2d 787, 406 N.Y.S.2d 32, 377 N.E.2d 476; Matter of Wipfler v. Klebes, 284 N.Y. 248, 30 N.E.2d 581). A public employer, however, may not abolish a job position as a subterfuge to avoid the statutory protection afforded to civil servants (see, Wood v. City of New York, 274 N.Y. 155, 8 N.E.2d 316). It is also well-settled that one who challenges the validity of such an act has the burden of proving that the employer did not act in good faith in abolishing the position (see, Matter of Crow v. Ambach, 96 A.D.2d 642, 465 N.Y.S.2d 71; Matter of Connolly v. Carey, 80 A.D.2d 936, 437 N.Y.S.2d 768). Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee (see, Matter of Vasquez v. Town Bd. of Town of Waterford, 72 A.D.2d 883, 422 N.Y.S.2d 142; Matter of Smith v. MacMurray, 52 A.D.2d 637, 382 N.Y.S.2d 561).
The courts of this state have continually held that when there exists a triable issue of fact with regard to bad faith, a full hearing must be held (see, Matter of McCanless v. Brieant, 19 A.D.2d 736, 242 N.Y.S.2d 841; Paese v. Pilla, 59 A.D.2d 701, 398 N.Y.S.2d 174; ...
To continue reading
Request your trial
-
Miller v. Civil Service Com'n
...14, 29 So.2d 411, 417 (1947); Bardsley v. Colo. Dep't of Pub. Safety, 870 P.2d 641, 648 (Colo.Ct.App.1994); Rosenthal v. Gilroy, 208 A.D.2d 748, 617 N.Y.S.2d 509, 510 (1994); In re Appeal of Woods, 7 Ohio App.3d 226, 455 N.E.2d 13, 15 (1982). Thus, in cases of this sort, the courts compare ......
-
Knox v. Town of Se.
...in which a new employee is hired to perform the duties of a terminated employee under a different position title, see Matter of Rosenthal, 208 A.D.2d at 749; Matter of Vasquez, 72 A.D.2d 883, or in which an employee who was not appointed in accordance with the NYCSL begins performing thedut......
-
Grant v. Town of Lewisboro, 2013-07255
...1000, AFSCME, AFL–CIO v. Rockland County Bd. of Coop. Educ. Servs., 39 A.D.3d 641, 642, 834 N.Y.S.2d 263 ; Matter of Rosenthal v. Gilroy, 208 A.D.2d 748, 749, 617 N.Y.S.2d 509 ). “Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as ......
-
DiSanza v. Town Bd. of Cortlandt
...22 A.D.3d at 493, 803 N.Y.S.2d 656; Matter of Rose v. City of Newburgh, 239 A.D.2d at 588, 658 N.Y.S.2d 986; Matter of Rosenthal v. Gilroy, 208 A.D.2d 748, 749, 617 N.Y.S.2d 509; see also Matter of Aldazabal v. Carey, 44 N.Y.2d 787, 788, 406 N.Y.S.2d 32, 377 N.E.2d 476). Here, the Supreme C......