59 A.D.2d 889 | N.Y. App. Div. | 1977
In a proceeding pursuant to CPLR article 78 to compel respondent to (1) reinstate petitioner to his position as secretary of the respondent sanitary district or, alternatively, (2) pay petitioner unused sick leave pay in the amount of $4,107.69, petitioner appeals from a judgment of the Supreme Court, Nassau County, dated July 13, 1977, which dismissed the proceeding. Judgment reversed, on the law, without costs or disbursements, arid proceeding remitted to the Special Term for a hearing to determine (1) whether the abolition and termination of petitioner’s position was an unlawful subterfuge to avoid the strictures of section 75 of the Civil Service Law and, if not, (2) the merits, if any, of petitioner’s claim for unused sick leave. Petitioner, a veteran, was employed by the respondent as the secretary thereof from October 1, 1973 until that position was abolished on December 27, 1976 pursuant to a resolution adopted by respondent’s board of commissioners. The title of secretary is in the exempt category of the civil service. In his petition petitioner alleges that the termination of his job title was a subterfuge to mask his discharge and the transfer of his duties to a newly hired employee with the title of general supervisor. Petitioner further alleges that notwithstanding the fact that he was classified in the exempt class of the civil service, he was entitled to a hearing before his discharge under section 75 of the Civil Service Law due to his status as a veteran. That section provides, in pertinent part: "1. Removal and other disciplinary action. A person described in paragraph (a), or paragraph (b), or paragraph (c), or paragraph (d) of this subdivision shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section. * * * (b) a person holding a position by permanent appointment or employment in the classified service of the state or in the several cities, counties, towns, or villages thereof, or in any other political or civil division of the state or of a municipality, or in the public school service, or in any public or special district, or in the service of any authority, commission or board, or in any other branch of public service, who is an honorable [sic] discharged member of the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter”. Finally, petitioner alleges, alternatively, that he has been wrongfully denied his unused sick leave pay. In opposition to the petition, respondent argues that petitioner