686 N.Y.S.2d 118 | N.Y. App. Div. | 1999
Appeal from a judgment of the Supreme Court (Caruso, J.), entered November 25, 1997 in Schenectady County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents discharging petitioner from his employment with the Town of Glenville Highway Department.
Petitioner thereafter commenced this CPLR article 78 proceeding to challenge his termination. Finding that petitioner’s termination was not arbitrary, capricious or unlawful, Supreme Court dismissed the petition. Petitioner appeals, contending that, by creating an “irrebuttable presumption of Petitioner’s guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law § 75.
Notably, “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law” (Dye v New York City Tr. Auth., 88 AD2d 899, affd 57 NY2d 917; see, Civil Service Law § 76 [4]; Matter of Marin v Benson, 131 AD2d 100, 102; Matter of Apuzzo v County of Ulster, 98 AD2d 869, 871, affd 62 NY2d 960; Matter of Goldfluss v Bonali, 89 AD2d 708). Thus, an employee may, pursuant to the provisions of a collective bargaining agreement, waive his or her rights pursuant to Civil Service Law §§75 and 76 (see, Dye v New York City Tr. Auth., supra).
Cardona, P. J., Spain, Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.
. Although the petition alleges in a conclusory fashion that the drug testing was invalid and not conducted in accordance with accepted procedures or with adequate safeguards against possible error, that petitioner was not advised in writing of the test results or of the testing procedures employed, that petitioner was given no opportunity to challenge the test results and that the Town violated its labor contract with petitioner’s bargaining unit, petitioner’s brief on appeal addresses only respondents’ failure to conduct an evidentiary hearing such as that provided for in Civil Service Law § 75 (2).
. In any event, it should be noted that petitioner claims in his brief that while this proceeding was pending “the Town conducted the hearing required by Civil Service Law [§ ] 75”. Further, although the Town’s alcohol and drug