Gaigal v. County of Suffolk

70 A.D.2d 640, 416 N.Y.S.2d 656, 1979 N.Y. App. Div. LEXIS 12081

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1979
• Status: Published

Opinion

Martuscello, J.,

dissents and votes to reverse the judgment and dismiss the proceeding, with the following memorandum: This appeal presents the question of whether a town employee who resigns upon being appointed to a county position from a civil service eligible list may retain seniority accrued as a public employee prior to his resignation. Under the circumstances here presented, I would hold that he may not. Petitioner Joseph C. Gaigal was appointed as a provisional engineering aide in the Suffolk County Department of Public Works. Probationary status was conferred on July 24, 1963; petitioner achieved permanent status eight weeks thereafter. Six months later, petitioner requested and received permission to transfer from his employment by the Suffolk County Department of Public Works to the Town of Smithtown. The Smithtown Supervisor and the Commissioner of the Suffolk County Department of Public Works formally consented, in writing, to petitioner’s request for the transfer. On March 24, 1971 the Suffolk County Department of Public Works appointed petitioner to the position of assistant civil engineer from the appropriate civil service eligible list. Petitioner’s name was placed on the eligible list after he passed an open competitive civil service examination for assistant civil engineer. On April 12, 1971, after accepting the county’s appointment petitioner resigned from his position with the Town of Smithtown. At Special Term and on appeal petitioner maintains that July 24, 1963, the date his employment with Suffolk County originally commenced, is the proper date for the purpose of computing his seniority and other employment benefits. Appellants, however, have ruled that April 12, 1971, the date of petitioner’s designation as assistant civil engineer, is the date which determines his seniority. Petitioner argues that his appointment as an assistant civil engineer constituted a "transfer” from the Town of Smithtown back to Suffolk County, under which he retained the seniority he acquired from the time of his initial employment by the county. Appellants contend that petitioner’s appointment from the eligible list did not entitle him to any "transfer” seniority rights. In my opinion the appellants are correct. The record before us amply demonstrates that petitioner simply resigned from his Smithtown position and was appointed to a new post from the eligible list by the county, with no "transfer” intended or implied. Paragraph D of subdivision 1 of Rule XX [renumbered as Rule XV, August 1, 1977] of the Suffolk County Civil Service Rule states: "Every transfer shall require the consent, in writing, of the transferee and of the respective appointing authorities having jurisdiction over the positions to which and from which transfer is sought, and the approval of the Personnel Officer.” No such written consent to petitioner’s appointment as assistant civil engineer was obtained, either from the Town of Smithtown or from the Suffolk County Department of Public Works. Indeed, in the wake of petitioner’s appointment by the county and his subsequent resignation from town employment the consent of either appointing authority would have been superfluous. The construction given rules and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld (see Matter of Allegheny Airlines v New York State Dept, of Labor, 52 AD2d 281, 284; Matter of Sigety v Ingraham, 29 NY2d 110, 114). Here, the appellants have reasonably interpreted Rule XX to allow a "transfer” only if the conditions enumerated therein have been satisfied. Since the required consent from the appropriate appointing authorities in Suffolk County was not obtained the petitioner did not transfer from the Town of Smithtown to the Suffolk County Department of Public Works. Rather, he resigned from his employment with the Town of Smithtown and was appointed to a new position as assistant civil engineer with Suffolk County. Therefore, Special Term erred when it found that petitioner’s "service was continuous from July 24, 1963” and the order certifying that date as petitioner’s seniority date for employment benefits must be reversed.