Penale v. County of Niagara

170 A.D.2d 965

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Status: Published

Opinion

Judgment unanimously reversed on the law without costs and judgment granted, in accordance with the following Memorandum: Petitioner’s CPLR article 78 proceeding challenging a resolution of the Niagara County Legislature should have been converted to a declaratory judgment action and we now do so (CPLR 103 [c]; Matter of Lakeland Water Disk v Onondaga County Water Auth., 24 NY2d 400, 406-408). This does not compromise petitioner’s right to a jury trial, duly demanded, without objection (see, Matter of Conway v Carey, 255 App Div 374; Ripple’s of Clearview v Le Havre Assocs., Ill Mise 2d 263, 264, affd 85 AD2d 660).

Addressing the merits, we conclude that the judgment must be reversed because petitioner did not establish that respondents acted in bad faith in abolishing his employment position and creating a new position for which he was not qualified (see, Matter of Aldazabal v Carey, 44 NY2d 787, 788). There was no evidence that the Niagara County Legislature acted because of animosity or bias toward petitioner, or as a result of statements petitioner made at a public press conference. Petitioner also failed to establish that the reorganization of the Niagara County Department of Social Services did not serve a legitimate purpose. Petitioner offered no evidence that the legislators engaged in fraud or collusion, or were subjected to undue influence in making their determination. Accordingly, judgment is granted declaring the resolution valid. (Appeal from Judgment of Supreme Court, Niagara County, Fallon, J.—Article 78.) Present—Dillon, P. J., Doerr, Denman, Green and Lowery, JJ.