Siletti v. D'Ambrose

92 Misc. 2d 585, 401 N.Y.S.2d 939, 1976 N.Y. Misc. LEXIS 2883

Opinion

OPINION OF THE COURT

Harold Baer, J.

This application by order to show cause why a preliminary injunction should not issue preliminarily restraining the respondents from appointing from a list of persons laid off for economy reasons, from the position of transit patrolman, is presented to the court together with the petition permanently seeking that relief and with the respondents’ answer to the petition. Since the pleadings present the same fundamental question of law as the application for preliminary relief, the court will determine the issue presented by the pleadings.

The petitioner was retired on ordinary disability from the position of transit patrolman in 1970. He was originally appointed in 1965, a date earlier in time than those more than 200 transit patrolmen laid off in 1975 for economy reasons.

In accordance with subdivision 1 of section 81 of the Civil Service Law, the laid off patrolmen have been placed on a preferred list for reinstatement or appointment to other similar positions. In January, 1976, the medical board found the petitioner no longer disabled and his name was placed on a list of one person for reinstatement after the laid off patrolmen, but preferred over any other eligibles.

He claims that he should be included in the preferred list of laid off patrolmen, from which presumably he would obtain early reinstatement, rather than a separate, later list.

The court cannot agree. The language of subdivision 1 of section 81 quite plainly directed solely to those laid off for economy reasons. It is noteworthy that the petitioner’s right to be treated as a "preferred eligible” under section B3-41.0 of the Administrative Code of the City of New York is without time limit, while the preferred list of laid off employees is limited to four years. In fact, the limiting language in the last portion of subdivision 1 of section 81 conflicts explicitly with an interpretation that could permit the petitioner to be included on that list.

The petition must be dismissed. Settle judgment.