Kass v. County of Putnam

Appellate Division of the Supreme Court of New York

Kass v. County of Putnam

217 A.D.2d 548, 628 N.Y.S.2d 811, 1995 N.Y. App. Div. LEXIS 7525

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 3, 1995

StatusPublished

This text of 217 A.D.2d 548 (Kass v. County of Putnam) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kass v. County of Putnam, 217 A.D.2d 548, 628 N.Y.S.2d 811, 1995 N.Y. App. Div. LEXIS 7525 (N.Y. Ct. App. 1995).

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Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the County of Putnam which denied the petitioner’s request to "retreat” to the position of Tax Map Technician pursuant to the Civil Service Law and the Putnam County Civil Service Rules, the petitioner appeals from (1) an order of the Supreme Court, Putnam County (Murphy, J.), dated September 8, 1993, which granted that branch of the respondent’s motion which was to dismiss the fourth cause of action for failure to file a notice of claim, and denied the petitioner’s cross motion to deem the petition or a correspondence sent by him to the County to be an adequate notice of claim, (2), an order of the same court, dated March 18, 1994, which granted the respondent’s application to dismiss the proceeding, and (3) a judgment of the same court dated May 2, 1994, which dismissed the proceeding.

Ordered that the appeals from the orders dated September 8, 1993, and March 18, 1994, are dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeals from the intermediate orders must be dismissed because any right of direct appeal therefrom terminated with the entry of judgment in the proceeding (see, Matter of Aho, 39 NY2d 241, 248), and the orders are not appealable as of right in any event (see, CPLR 5701 [b] [1]). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

We agree with the Supreme Court’s determination that the Tax Map Technician position in which the petitioner last served on a permanent basis was eliminated at the same time that his current position as Mass Appraisal Technician was abolished and, therefore, the petitioner did not have a right to "retreat” to the Tax Map Technician position (see, Civil Service Law § 80 [6]; Putnam County Civil Service Rule XXV [4]). Accordingly, the respondent’s determination to deny the petitioner the right to retreat was neither arbitrary nor capricious (see, CPLR 7803 [3]; Matter of Pell v Board of Educ., 34 NY2d 222).

The petitioner’s remaining contentions are without merit. Thompson, J. P., Pizzuto, Santucci and Florio, JJ, concur.

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In a proceeding pursuant to CPLR article 78 to review a determination of the County of Putnam which denied the petitioner’s request to "retreat” to the position of Tax Map Technician pursuant to the Civil Service Law and the Putnam County Civil Service Rules, the petitioner appeals from (1) an order of the Supreme Court, Putnam County (Murphy, J.), dated September 8, 1993, which granted that branch of the respondent’s motion which was to dismiss the fourth cause of action for failure to file a notice of claim, and denied the petitioner’s cross motion to deem the petition or a correspondence sent by him to the County to be an adequate notice of claim, (2), an order of the same court, dated March 18, 1994, which granted the respondent’s application to dismiss the proceeding, and (3) a judgment of the same court dated May 2, 1994, which dismissed the proceeding.

Ordered that the appeals from the orders dated September 8, 1993, and March 18, 1994, are dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeals from the intermediate orders must be dismissed because any right of direct appeal therefrom terminated with the entry of judgment in the proceeding (see, Matter of Aho, 39 NY2d 241, 248), and the orders are not appealable as of right in any event (see, CPLR 5701 [b] [1]). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

We agree with the Supreme Court’s determination that the Tax Map Technician position in which the petitioner last served on a permanent basis was eliminated at the same time that his current position as Mass Appraisal Technician was abolished and, therefore, the petitioner did not have a right to "retreat” to the Tax Map Technician position (see, Civil Service Law § 80 [6]; Putnam County Civil Service Rule XXV [4]). Accordingly, the respondent’s determination to deny the petitioner the right to retreat was neither arbitrary nor capricious (see, CPLR 7803 [3]; Matter of Pell v Board of Educ., 34 NY2d 222).

The petitioner’s remaining contentions are without merit. Thompson, J. P., Pizzuto, Santucci and Florio, JJ, concur.

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Bluebook (online)

217 A.D.2d 548, 628 N.Y.S.2d 811, 1995 N.Y. App. Div. LEXIS 7525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kass-v-county-of-putnam-nyappdiv-1995.

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