Orloff v. City of Gloversville

Appellate Division of the Supreme Court of New York

Orloff v. City of Gloversville

34 A.D.2d 1080, 312 N.Y.S.2d 334, 1970 N.Y. App. Div. LEXIS 4261

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

DecidedJune 30, 1970

StatusPublished

This text of 34 A.D.2d 1080 (Orloff v. City of Gloversville) 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

Orloff v. City of Gloversville, 34 A.D.2d 1080, 312 N.Y.S.2d 334, 1970 N.Y. App. Div. LEXIS 4261 (N.Y. Ct. App. 1970).

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Opinion

Reynolds, J.

Appeal from a judgment of the Supreme Court, entered in Fulton County, in a proceeding brought pursuant to CPLR article 78, annulling a determination by appellants reclassifying respondent from lieutenant to patrolman, and directing his reinstatement to the rank of lieutenant. Special Term correctly held that since respondent was performing the duties of a lieutenant and receiving the salary thereof until his reclassification on April 16, 1969, he was not aggrieved until such time, and that accordingly since his petition for reinstatement of June 3, 1969 and his bringing of the instant proceeding on July 8, 1969 were within the four-month period following such reclassification, the Statute of Limitations under article 78, and the doctrine of laches did not preclude his bringing the instant proceeding. We also concur in Special Term’s conclusion that despite the fact that respondent’s promotion to lieutenant was denominated “ probationary ”, it was in fact permanent (Matter of Rasmussen v. Board of Supervisors of County of Erie, 175 Mise. 838, affd. 262 App. Div. 815; Matter of Spindel v. New York City Sousing Auth., 41 Mise 2d 363; Kass v. Gross, 76 N. Y. S. 2d 309). Section 63 of the Civil Service Law does not mandate a probationary period where as here the promotion is intradepartmental and appellant’s rule XIV does not even provide for one. Judgment affirmed, without costs. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Reynolds, J.

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Reynolds, J.

Appeal from a judgment of the Supreme Court, entered in Fulton County, in a proceeding brought pursuant to CPLR article 78, annulling a determination by appellants reclassifying respondent from lieutenant to patrolman, and directing his reinstatement to the rank of lieutenant. Special Term correctly held that since respondent was performing the duties of a lieutenant and receiving the salary thereof until his reclassification on April 16, 1969, he was not aggrieved until such time, and that accordingly since his petition for reinstatement of June 3, 1969 and his bringing of the instant proceeding on July 8, 1969 were within the four-month period following such reclassification, the Statute of Limitations under article 78, and the doctrine of laches did not preclude his bringing the instant proceeding. We also concur in Special Term’s conclusion that despite the fact that respondent’s promotion to lieutenant was denominated “ probationary ”, it was in fact permanent (Matter of Rasmussen v. Board of Supervisors of County of Erie, 175 Mise. 838, affd. 262 App. Div. 815; Matter of Spindel v. New York City Sousing Auth., 41 Mise 2d 363; Kass v. Gross, 76 N. Y. S. 2d 309). Section 63 of the Civil Service Law does not mandate a probationary period where as here the promotion is intradepartmental and appellant’s rule XIV does not even provide for one. Judgment affirmed, without costs. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Reynolds, J.

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Bluebook (online)

34 A.D.2d 1080, 312 N.Y.S.2d 334, 1970 N.Y. App. Div. LEXIS 4261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orloff-v-city-of-gloversville-nyappdiv-1970.

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