Young v. Supervisor of Town of Lloyd
| Decision Date | 22 March 1990 |
| Citation | 552 N.Y.S.2d 981,159 A.D.2d 828 |
| Parties | In the Matter of Anna A. YOUNG, Respondent, v. SUPERVISOR OF TOWN OF LLOYD et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Di Stasi & Moriello, P.C. (Thomas P. Halley, of counsel), Highland, for appellants.
Noel Tepper, Poughkeepsie, for respondent.
Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and LEVINE, JJ.
KANE, Justice Presiding.
Appeal from a judgment of the Supreme Court (Cobb, J.), entered May 31, 1989 in Ulster County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondents to, inter alia, pay petitioner's salary and fringe benefits pending a determination of disciplinary charges.
Petitioner has commenced this CPLR article 78 proceeding to compel respondents to pay her salary and fringe benefits pending a determination of disciplinary charges brought against her. Petitioner was an employee of the Town of Lloyd, Ulster County, under the classified civil service title of Building Inspector III, when respondents filed disciplinary charges seeking her dismissal. Petitioner was suspended without pay for 30 days pursuant to Civil Service Law § 75(3). When the 30-day suspension ended, however, respondents failed to resume salary and benefit payments and, as of the date this proceeding was commenced, no decision on the disciplinary charges had been rendered.
Respondents answered the petition asserting the affirmative defenses that petitioner, as a nonresident, could not hold her position with the Town and that her position had been eliminated due to budgetary considerations. Supreme Court found that respondents failed to show abolishment of petitioner's position and were estopped from raising a residency requirement because, inter alia, they originally acquiesced in her employment as a nonresident. Supreme Court ordered, inter alia, that respondents continue to pay petitioner's salary pending a determination of the disciplinary charges or the good-faith abolishment of petitioner's position. This appeal followed.
Respondents contend that petitioner bears the burden of showing bad faith on their part in abolishing petitioner's position. Petitioner contends that inasmuch as respondents raise the abolishment of the position as an affirmative defense, they bear the burden of showing that it was undertaken in good faith. Supreme Court determined that respondents insufficiently supported their showing that the position was abolished through "conclusory assertions" and that respondents had "failed to raise any triable issue of fact with respect to a defense that [the] position was abolished". We disagree and, finding that questions of fact remain to be answered, remit the matter to Supreme Court for a hearing on the petition.
Although respondents bear the burden of proving an...
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