Liebeskind v. MacKinnon

Appellate Division of the Supreme Court of New York

Liebeskind v. MacKinnon

73 A.D.2d 789, 423 N.Y.S.2d 705, 1979 N.Y. App. Div. LEXIS 14659

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

DecidedDecember 7, 1979

StatusPublished

This text of 73 A.D.2d 789 (Liebeskind v. MacKinnon) 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.

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Liebeskind v. MacKinnon, 73 A.D.2d 789, 423 N.Y.S.2d 705, 1979 N.Y. App. Div. LEXIS 14659 (N.Y. Ct. App. 1979).

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Opinion

— Order unanimously affirmed, without costs. Memorandum: In this CPLR article 78 proceeding, petitioner appeals from the dismissal at Special Term of his petition to be reinstated to his former position of Deputy Commissioner of Recreation in the Department of Parks and Recreation of Erie County. Petitioner argues that as an honorably discharged veteran he is protected by the provisions of section 75 of the Civil Service Law from dismissal except for incompetency or misconduct shown after a hearing on stated charges. We affirm Special Term’s holding that petitioner was a "deputy” within the meaning of section 75 (subd 1, par [b]) and as such was excepted from the provisions of that section. We find statutory authority for the delegation by the Commissioner of Parks and Recreation of certain of his duties to the Deputy Commissioner of Recreation. Among the duties of the Commissioner of Parks and Recreation is "supervision and control over the design, construction, operation, maintenance and repair of all county owned and operated properites and facilities [including] recreation facilities” (Erie County Charter, § 702). Section 7.03 of the Erie County Administrative Code provides that the Deputy Commissioner of Recreation shall, inter alia, "supervise and direct such county recreational facilities as the commissioner of parks and recreation shall designate”. Clearly, the commissioner is authorized to delegate to the deputy as much of his "supervision and control” over the recreation facilities as he wishes. The evidence concerning petitioner’s duties supports the conclusion that the commissioner did in fact delegate his "supervision and control” of the recreation facilities to petitioner, thus constituting petitioner his deputy. (See Matter of Behringer v Parisi, 5 NY2d 147; Matter of Byrnes v Windels, 265 NY 403.) (Appeal from order of Erie Supreme Court — art 78.) Present — Simons, J. P., Appellants. Jr., Schnepp, Doerr and Witmer, JJ.

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— Order unanimously affirmed, without costs. Memorandum: In this CPLR article 78 proceeding, petitioner appeals from the dismissal at Special Term of his petition to be reinstated to his former position of Deputy Commissioner of Recreation in the Department of Parks and Recreation of Erie County. Petitioner argues that as an honorably discharged veteran he is protected by the provisions of section 75 of the Civil Service Law from dismissal except for incompetency or misconduct shown after a hearing on stated charges. We affirm Special Term’s holding that petitioner was a "deputy” within the meaning of section 75 (subd 1, par [b]) and as such was excepted from the provisions of that section. We find statutory authority for the delegation by the Commissioner of Parks and Recreation of certain of his duties to the Deputy Commissioner of Recreation. Among the duties of the Commissioner of Parks and Recreation is "supervision and control over the design, construction, operation, maintenance and repair of all county owned and operated properites and facilities [including] recreation facilities” (Erie County Charter, § 702). Section 7.03 of the Erie County Administrative Code provides that the Deputy Commissioner of Recreation shall, inter alia, "supervise and direct such county recreational facilities as the commissioner of parks and recreation shall designate”. Clearly, the commissioner is authorized to delegate to the deputy as much of his "supervision and control” over the recreation facilities as he wishes. The evidence concerning petitioner’s duties supports the conclusion that the commissioner did in fact delegate his "supervision and control” of the recreation facilities to petitioner, thus constituting petitioner his deputy. (See Matter of Behringer v Parisi, 5 NY2d 147; Matter of Byrnes v Windels, 265 NY 403.) (Appeal from order of Erie Supreme Court — art 78.) Present — Simons, J. P., Appellants. Jr., Schnepp, Doerr and Witmer, JJ.

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Bluebook (online)

73 A.D.2d 789, 423 N.Y.S.2d 705, 1979 N.Y. App. Div. LEXIS 14659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liebeskind-v-mackinnon-nyappdiv-1979.

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