Hart v. County of Chautauqua

236 A.D.2d 796, 654 N.Y.S.2d 58

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 1997
• Docket: Appeal No. 2
• Status: Published

Opinion

—Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Respondents appeal from a judgment that granted the CPLR article 78 petition and reinstated petitioner to his position as Deputy Director of the Division of Buildings and Grounds with back pay and benefits. We reverse and dismiss the petition.

The relevant section of the Chautauqua County Charter provides that the Director of the Department of Central and Information Services has "the power to appoint * * * deputies, assistants and employees of his department as may be necessary to implement the duties of his office” (Chautauqua County Charter § 6.00; see also, Chautauqua County Administrative Code § 6.00). To the extent that provisions of the Chautauqua County Administrative Code conflict with the Chautauqua County Charter, the Charter controls (see, Tormey v La Guardia, 172 Misc 1091, 1094, affd 259 App Div 802, affd 284 NY 607). Because the provisions of the Chautauqua County Administrative Code must be construed in a manner consistent with the intent and provisions of the Chautauqua County Charter (see, Chautauqua County Administrative Code § 17.00), we construe the Charter and the Code to authorize the Director of the Department of Central and Information Services to appoint a deputy in his or her discretion. Thus, the issue of legislative equivalency does not apply (cf., Matter of Torre v County of Nassau, 86 NY2d 421; Matter of Gallagher v Regan, 42 NY2d 230). (Appeal from Judgment of Supreme Court, Chautauqua County, Gorski, J.—Reargument.) Present—Den-man, P. J., Green, Pine, Callahan and Boehm, JJ.