Nugent v. New York State Civil Service Commission

46 A.D.2d 700, 360 N.Y.S.2d 286, 1974 N.Y. App. Div. LEXIS 3856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1974
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term, entered April 2, Í973 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review and annul a determination of the New York State Civil Service Commission. Petitioner is the City Assessor of the City of Yonkers previously classified in the noncompetitive class and who could not be removed except for cause. By resolution dated May 30, 1972, the Municipal Civil Service Commission of the City of Yonkers amended its rules and placed the position of City Assessor in the unclassified service. Approval of this change was sought from the State Civil Service Commission as required by statute (Civil Service Law, § 20), and refused. This proceeding ensued. Subdivision (e) of section 35 of the Civil Service Law defines unclassified service and provides, in part, as follows: “(e) the head or heads of any department of the government who are vested with authority, direction and control over a department, and who have power and authority to appoint and remove officers and employees therein”. Although the record is somewhat inadequate, it does not appear that this City Assessor qualifies as a “head of department” as contemplated by the Civil Service Law and controlling case law (Civil Service Law, § 35, subd. [e]; Matter of Neff v. Falk, 10 A D 2d 789, affd, 9 1ST Y 2d 1004; Matter of Broome Comity v. New York State Civ. Serv. Comm., 73 Mise 2d 408, affd. 43 A D 2d 995) so as to render respondent’s determination arbitrary or capricious. Judgment affirmed, without costs. Herlihy, P. J., Sweeney, Kane, Main and Reynolds, JJ., concur.