Henrich v. Town Board

213 A.D.2d 814, 623 N.Y.S.2d 401, 1995 N.Y. App. Div. LEXIS 2623

Opinion

Spain, J.

Appeal from a judgment of the Supreme Court (Torraca, J.), entered May 27, 1993 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted respon dent’s motion to dismiss the petition for failure to state a cause of action.

Petitioner was appointed as a Police Officer-Part Time for the Town of Plattekill, Ulster County, in April 1977.

Footnotes

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* Respondent appointed petitioner as Chief of Police, on an annual basis, from 1982 until 1993. Prior to March 1993, the post of Chief of Police was filled as a non-civil service position by designation of respondent (see, Matter of Betanzos v Green, 95 Misc 2d 89).

On January 6, 1993, respondent did not reappoint petitioner for an additional annual term as Chief of Police. On March 3, 1993, an order and determination of the Ulster County Personnel Department (hereinafter the Department) established the position of Police Chief A and said position was allocated to the competitive class. Thereafter, an attempt was made to appoint petitioner to the position of Police Chief A. However, the Department refused to recognize the appointment due to petitioner’s lack of qualifications for that position.

Petitioner presently serves as the head of the Department as the unofficial "officer in charge”. Respondent now argues that the appeal is moot. We disagree. Petitioner’s present position as the unofficial "officer in charge” is not identical, equivalent or synonymous with the relief requested in the verified petition (i.e., reappointment as the Town’s Chief of Police).

However, we agree with respondent’s contention that its failure to reappoint petitioner in January 1993 is nonreviewable. The unofficial position of Chief of Police was neither a tenured or permanent civil service position or that of a public officer which would require formal charges and a hearing prior to respondent’s failure to reappoint (see, Matter of Green-smith v Incorporated Vil. of Centre Is., 109 AD2d 742). Accordingly, petitioner has failed to state a cause of action.

Petitioner’s further contentions are without merit.

Cardona P. J., Mercure, Casey and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.

Petitioner has held the noncompetitive position of Police Officer-Part Time from 1977 to the present.