Reilly v. Reid

55 A.D.2d 975, 390 N.Y.S.2d 655, 1977 N.Y. App. Div. LEXIS 10291

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1977
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term, entered April 1, 1976 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, seeking (1) displacement into a noncompetitive or exempt attorney position in the Department of Environmental Conservation and (2) back pay from January 27, 1976 to March 30, 1976. The petitioner was employed by the Department of Environmental Conservation as an Associate Attorney, a civil service job in the competitive class. In December of 1975 he was advised that his position was being abolished and was offered the next lower competitive class job of Senior Attorney which he refused. The petitioner does not dispute the appropriateness of granting him seniority as to the title of Senior Attorney in the competitive class, but contends that he was entitled to exercise seniority as to positions where the work is the same as his, but classified as exempt or noncompetitive (Civil Service Law, § 80, subd 1). Assuming that there are such exempt or noncompetitive positions in the Department of Environmental Conservation, the positions are not similar as a matter of law and the claimant may not assert seniority as to them (Matter of Meenagh v Dewey, 286 NY 292). The petitioner’s contention that he was dismissed from his position while a temporary restraining order was in effect is without merit. Judgment affirmed, without costs. Greenblott, J. P., Sweeney, Main, Larkin and Herlihy, JJ., concur.