Roberts v. City of New York

21 A.D.3d 329, 800 N.Y.S.2d 672, 2005 N.Y. App. Div. LEXIS 8796

Opinion

Judgment (denominated an order), Supreme Court, New York County (Lewis Bart Stone, J.), entered February 4, 2004, dismissing the petitions bearing index numbers 127943/02 (Roberts I) and 103953/03 (Roberts II), unanimously affirmed, without costs.

Provisional employees “may be terminated at any time” (Matter of Preddice v Callanan, 69 NY2d 812, 814 [1987]) unless “terminated in violation of a constitutional provision or some statute” (id.; see also Matter of State Div. of Human Rights v County of Onondaga Sheriffs Dept., 71 NY2d 623 [1988]). Petitioners allege that respondents violated various statutes and article V, § 6 of the New York State Constitution. However, petitioners were not terminated in violation thereof.

Three of the four provisions on which the Roberts II petitioners rely (NY Const, art V, § 6; Civil Service Law § 50 [1]; § 61 [1]) have nothing to do with terminations. While respondents retained petitioners beyond the statutory time limits in Civil Service Law § 65 (2) and (3), they did not terminate petitioners in violation thereof. In Roberts I, the alleged constitutional violation is the hiring of private contract workers, not the termination of petitioners. Similarly, the alleged violation of Social Services Law § 336-c (2) (e) is the use of welfare recipients participating in a work experience program, not the termination of petitioners.

Roberts II involves only provisional employees, and was properly dismissed. Roberts I identifies 250 provisional employees, specifically, 85 clerical associates, 73 clerical aides, 48 secretaries, 25 bookkeepers, 11 computer specialists and 8 computer technicians, for a total of 250 employees. The remaining 44 workers identified as being scheduled for termination are noncompetitive employees.

Footnotes

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* Because employees in the noncompetitive class are not protected by the Civil Service Law (see Garner v Gunn, 131 AD2d 632 [1987]; Matter of Tyson v Hess, 109 AD2d 1068, 1069-1070 [1985], affd 66 NY2d 943 [1985]), Roberts I was also properly dismissed. Concur—Tom, J.P., Andrias, Marlow, Sullivan and Catterson, JJ.

The subsequent references to “259” provisional employees and a total of “303 employees targeted for layoff’ in the petition are apparently the result of typographical error as they are otherwise unexplained.