Matter of Sikorski-Petritz v. County of Erie

Appellate Division of the Supreme Court of New York

Matter of Sikorski-Petritz v. County of Erie

2017 NY Slip Op 4740, 151 A.D.3d 1777, 57 N.Y.S.3d 813

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

DecidedJune 9, 2017

Docket854 CA 16-02233

StatusPublished

This text of 2017 NY Slip Op 4740 (Matter of Sikorski-Petritz v. County of Erie) 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

Matter of Sikorski-Petritz v. County of Erie, 2017 NY Slip Op 4740, 151 A.D.3d 1777, 57 N.Y.S.3d 813 (N.Y. Ct. App. 2017).

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Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered April 7, 2016 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to vacate the decision of respondent, County of Erie (County), to demote her from a position as Counsel-Social Services to a position of Medical Caseworker. Petitioner contends that she was appointed to a permanent or contingent permanent position as Counsel-Social Services and was therefore entitled to the procedural protections of Civil Service Law § 75 prior to her demotion. Supreme Court properly dismissed the petition. The record establishes that the County appointed petitioner to a temporary Counsel-Social Services position, and therefore the protections of Civil Service Law § 75 do not apply (see Matter of Jones v Westchester County Dept. of Social Servs., 228 AD2d 601, 601 [1996]; Matter of Ause v Regan, 59 AD2d 317, 323 [1977]). Contrary to petitioner’s contention, the temporary appointment could exceed three months because the appointment was made for a position that was encumbered by an employee on leave of absence (see § 64 [1] [a]). Inasmuch as the Counsel-Social Services position did not become vacant before petitioner’s demotion, her temporary appointment to that position could not have ripened into a permanent one (see generally Matter of Albany Permanent Professional Firefighters Assn., Local 2007, IAFF, AFL-CIO v City of Albany, 303 AD2d 819, 819-820 [2003]; Matter of Wadsworth v Garnsey, 62 AD2d 1141, 1141 [1978], lv denied 45 NY2d 706 [1978]). We have considered petitioner’s remaining contentions and conclude that they are without merit.

Present — Smith, J.P., Centra, Peradotto, Lindley and NeMoyer, JJ.

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Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered April 7, 2016 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to vacate the decision of respondent, County of Erie (County), to demote her from a position as Counsel-Social Services to a position of Medical Caseworker. Petitioner contends that she was appointed to a permanent or contingent permanent position as Counsel-Social Services and was therefore entitled to the procedural protections of Civil Service Law § 75 prior to her demotion. Supreme Court properly dismissed the petition. The record establishes that the County appointed petitioner to a temporary Counsel-Social Services position, and therefore the protections of Civil Service Law § 75 do not apply (see Matter of Jones v Westchester County Dept. of Social Servs., 228 AD2d 601, 601 [1996]; Matter of Ause v Regan, 59 AD2d 317, 323 [1977]). Contrary to petitioner’s contention, the temporary appointment could exceed three months because the appointment was made for a position that was encumbered by an employee on leave of absence (see § 64 [1] [a]). Inasmuch as the Counsel-Social Services position did not become vacant before petitioner’s demotion, her temporary appointment to that position could not have ripened into a permanent one (see generally Matter of Albany Permanent Professional Firefighters Assn., Local 2007, IAFF, AFL-CIO v City of Albany, 303 AD2d 819, 819-820 [2003]; Matter of Wadsworth v Garnsey, 62 AD2d 1141, 1141 [1978], lv denied 45 NY2d 706 [1978]). We have considered petitioner’s remaining contentions and conclude that they are without merit.

Present — Smith, J.P., Centra, Peradotto, Lindley and NeMoyer, JJ.

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2017 NY Slip Op 4740, 151 A.D.3d 1777, 57 N.Y.S.3d 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-sikorski-petritz-v-county-of-erie-nyappdiv-2017.

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