Romero v. Joseph

169 A.D.2d 544, 564 N.Y.S.2d 397, 1991 N.Y. App. Div. LEXIS 477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1991
• Status: Published

Opinion

Judgment of Supreme Court, New York County (Edward H. Lehner, J.), entered June 30, 1989, granting respondents’ cross motion and dismissing the CPLR article 78 petition, unanimously affirmed, without costs.

Petitioners, former civil service employees, failed to meet their burden of demonstrating that their termination as provisional employees was arbitrary, capricious, in bad faith, or otherwise in contravention of the Civil Service Law or other applicable procedure. (See, Matter of Johnson v Board of Educ., 155 AD2d 896; Matter of Johnson v Katz, 116 AD2d 930, affd 68 NY2d 649.) Petitioners offered no evidence in this case to demonstrate that the purported involuntary reclassification took place either de facto or de jure, or that they did not voluntarily resign their former noncompetitive positions in favor of the higher salaries offered in the provisional positions from which they were terminated. As provisional employees, they were not entitled to a pretermination hearing or statement of charges. (See, Matter of Preddice v Callanan, 69 NY2d 812, 814.) Accordingly, the petition was properly dismissed. Concur—Murphy, P. J., Carro, Wallach, Kupferman and Asch, JJ.