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Matter of Rosenthal v. Gilroy

Appellate Division of the Supreme Court of New York, Second Department
Oct 17, 1994
208 A.D.2d 748 (N.Y. App. Div. 1994)

Opinion

October 17, 1994

Appeal from the Supreme Court, Nassau County (DiNoto, J.).


Ordered that the judgment is reversed, with costs, and the matter is remitted to the Supreme Court for further proceedings consistent herewith.

The petitioner contends that the Supreme Court erred in dismissing her petition on the ground that there was no evidence of bad faith by the respondents in abolishing her position. We agree.

It is well-settled that a public employer may abolish civil service positions for the purposes of economy or efficiency (see, Matter of Aldazabal v. Carey, 44 N.Y.2d 787; Matter of Wipfler v. Klebes, 284 N.Y. 248). A public employer, however, may not abolish a job position as a subterfuge to avoid the statutory protection afforded to civil servants (see, Wood v. City of New York, 274 N.Y. 155). It is also well-settled that one who challenges the validity of such an act has the burden of proving that the employer did not act in good faith in abolishing the position (see, Matter of Crow v. Ambach, 96 A.D.2d 642; Matter of Connolly v. Carey, 80 A.D.2d 936). Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee (see, Matter of Vasquez v Town Bd., 72 A.D.2d 883; Matter of Smith v. MacMurray, 52 A.D.2d 637).

The courts of this State have continually held that when there exists a triable issue of fact with regard to bad faith, a full hearing must be held (see, Matter of McCanless v. Brieant, 19 A.D.2d 736; Paese v. Pilla, 59 A.D.2d 701; Matter of Hartman v. Erie 1 BOCES Bd. of Educ., 204 A.D.2d 1037; Matter of Young v Supervisor of Town of Lloyd, 159 A.D.2d 828, 829; Matter of Cushion v. Gorski, 174 A.D.2d 993).

Here, there was evidence of bad faith by the respondents based upon their treatment of the petitioner before her position was abolished, the fact that she was discharged just prior to vesting in the State retirement system, and, contrary to the respondents' assertions, the fact that there did not appear to be an urgent need to automate the petitioner's position. Most importantly, there was evidence that the person hired for the newly titled position performed substantially the same duties as the petitioner. Balletta, J.P., Rosenblatt, Miller and Ritter, JJ., concur.


Summaries of

Matter of Rosenthal v. Gilroy

Appellate Division of the Supreme Court of New York, Second Department
Oct 17, 1994
208 A.D.2d 748 (N.Y. App. Div. 1994)
Case details for

Matter of Rosenthal v. Gilroy

Case Details

Full title:In the Matter of BARBARA F. ROSENTHAL, Appellant, v. MICHAEL K. GILROY et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 17, 1994

Citations

208 A.D.2d 748 (N.Y. App. Div. 1994)
617 N.Y.S.2d 509

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