Cushion v. Gorski

174 A.D.2d 993

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1991
• Status: Published

Opinion

—Judgment unanimously reversed on the law with costs, motion denied, petition reinstated and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: Petitioner was employed in the civil service position of Executive Deputy Commissioner of the Erie County Department of Social Services. With the adoption of Erie County’s 1989 budget, however, her position was abolished. While a public employer may in good faith abolish a civil service position for reasons of economy or efficiency (see, Matter of Aldazabal v Carey, 44 NY2d 787; Matter of Wipfler v Klebes, 284 NY 248; Matter of O’Donnell v Kirby, 112 AD2d 936), a position may not be abolished as a subterfuge to avoid the statutory protection afforded to civil servants (see, Switzer v Sanitary Dist. No. 7, 59 AD2d 889, 890, appeal dismissed 43 NY2d 845). The issue whether petitioner’s position was abolished in good faith cannot be resolved on the moving papers. A trial is required (see, Matter of Terrible v County of Rock-land, 81 AD2d 837, 838). (Appeal from Judgment of Supreme Court, Erie County, Ostrowski, J.—Article 78.) Present—Dillon, P. J., Boomer, Green, Pine and Davis, JJ.