Mercado v. New York City Youth Board

New York Supreme Court

Mercado v. New York City Youth Board

21 Misc. 2d 228, 195 N.Y.S.2d 969, 1959 N.Y. Misc. LEXIS 3587

CourtNew York Supreme Court

DecidedMay 28, 1959

StatusPublished

Cited by2 cases

This text of 21 Misc. 2d 228 (Mercado v. New York City Youth Board) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mercado v. New York City Youth Board, 21 Misc. 2d 228, 195 N.Y.S.2d 969, 1959 N.Y. Misc. LEXIS 3587 (N.Y. Super. Ct. 1959).

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Opinion

Samuel M. Gold, J.

This is a proceeding under article 78 of the Civil Practice Act, for an order vacating the determination of the respondent which dismissed petitioner from his position as Senior Street Club Worker, and directing respondent to reinstate petitioner to his former status with full pay from the date of his discharge.

Petitioner was appointed a Senior Street Club Worker on October 21, 1957, and summarily discharged from his employment by respondent as of October 7,1958, without a hearing. It appears from the record that petitioner was appointed as a provisional employee and continued in that capacity until he was discharged.

[229]*229The position is classified in the competitive class of the New York City Civil Service. Petitioner, however, never participated in a competitive test and was not appointed from an eligible list. Since petitioner did not qualify for employment on the basis of merit and fitness pursuant to a competitive test, he acquired no legal right to the position and is subject to removal at will (Matter of Scahill v. Drzewucki, 269 N. Y. 343). The mere fact that respondent continued his provisional employment beyond the limitation period in violation of section 15 of the Civil Service Law and rule Y (§ IX, subd. 6 [par. (a)]; subd. 7) of the Bules and Begulations of the New York Civil Service Commission, did not confer permanency on the appointment. Accordingly, since the appointment was not made in conformity with the Constitution or the Civil Service Laws, and petitioner was merely a provisional employee, he acquired no tenure of office and is not entitled to review his discharge under the provisions of section 22 of the Civil Service Law (Matter of Benon v. La Guardia, 285 N. Y. 560; Matter of Hilsenrad v. Miller, 284 N. Y. 445).

The motion is denied and the petition dismissed.

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Samuel M. Gold, J.

This is a proceeding under article 78 of the Civil Practice Act, for an order vacating the determination of the respondent which dismissed petitioner from his position as Senior Street Club Worker, and directing respondent to reinstate petitioner to his former status with full pay from the date of his discharge.

Petitioner was appointed a Senior Street Club Worker on October 21, 1957, and summarily discharged from his employment by respondent as of October 7,1958, without a hearing. It appears from the record that petitioner was appointed as a provisional employee and continued in that capacity until he was discharged.

[229]*229The position is classified in the competitive class of the New York City Civil Service. Petitioner, however, never participated in a competitive test and was not appointed from an eligible list. Since petitioner did not qualify for employment on the basis of merit and fitness pursuant to a competitive test, he acquired no legal right to the position and is subject to removal at will (Matter of Scahill v. Drzewucki, 269 N. Y. 343). The mere fact that respondent continued his provisional employment beyond the limitation period in violation of section 15 of the Civil Service Law and rule Y (§ IX, subd. 6 [par. (a)]; subd. 7) of the Bules and Begulations of the New York Civil Service Commission, did not confer permanency on the appointment. Accordingly, since the appointment was not made in conformity with the Constitution or the Civil Service Laws, and petitioner was merely a provisional employee, he acquired no tenure of office and is not entitled to review his discharge under the provisions of section 22 of the Civil Service Law (Matter of Benon v. La Guardia, 285 N. Y. 560; Matter of Hilsenrad v. Miller, 284 N. Y. 445).

The motion is denied and the petition dismissed.

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Bluebook (online)

21 Misc. 2d 228, 195 N.Y.S.2d 969, 1959 N.Y. Misc. LEXIS 3587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercado-v-new-york-city-youth-board-nysupct-1959.

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