Cite as: Matter of Jane Grzanowski v. The Horace Nye Nursing Home, 0741-11, NYLJ 1202586126294, at *1 (Sup. ES, Decided October, 2012)

Justice Robert J. Muller

 

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Decided: October, 2012

ATTORNEYS

For Petitioner: Robert P. Bogdan, Sackets Harbor.

For Respondents: Daniel T. Manning, County Attorney, Elizabethtown.

For Judgment pursuant to Article 78 of the Civil Practice Law and Rules

DECISION AND JUDGMENT

 

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Respondent Horace Nye Nursing Home (hereinafter Horace Nye) is owned and operated by the County of Essex. On July 20, 2006, petitioner was hired by Horace Nye to work as an Account Clerk/Typist, which is a Grade 6 civil service position. On July 15, 2011, petitioner received correspondence from respondent Deborah L.B. Gifford, the Administrator of Horace Nye, stating, in pertinent part:

"[Y]our position of Account Clerk/Typist is being eliminated at the close of business on Friday, July 29, 2011. We are allowing you to use benefit leave time (Vacation Leave) from July 18, 2011 through July 29, 2011. Today will be your last day of work."

Following her termination, petitioner apparently discovered that Horace Nye had created the new position of Senior Account Clerk, a Grade 8 position, to replace her eliminated Account

 

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Clerk/Typist position. According to petitioner, the duties of the Senior Account Clerk are substantially similar to her duties as Account Clerk/Typist. Petitioner further discovered that Horace Nye selected another employee to fill the Senior Account Clerk position, rather than offering the position to her. Petitioner subsequently commenced this CPLR article 78 proceeding on November 29, 2011. Petitioner contends that respondents eliminated her Account Clerk/Typist position in bad faith and attempted to circumvent the due process requirements of Civil Service Law §75.

"A public employer may abolish civil service positions for the purpose of economy or efficiency" (Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v. Rockland County Bd. of Coop. Educ. Servs., 39 AD3d 641, 642 [2007] [citation omitted]; see Civil Service Law §80 [1]; Matter of Vasquez v. Town Bd. of Town of Waterford, 72 AD2d 883, 883 [1979]). It may not, however, abolish a position "as a subterfuge to avoid the statutory protection afforded to civil servants before they are discharged" (Matter of Vasquez v. Town Bd. of Town of Waterford, 72 AD2d at 883; see Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v. Rockland County Bd. of Coop. Educ. Servs., 39 AD3d at 642). "[T]he burden of showing a lack of good faith rests upon the person challenging the validity of the abolition" (Matter of Vasquez v. Town Bd. of Town of Waterford, 72 AD2d at 883; see Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v. Rockland County Bd. of Coop. Educ. Servs., 39 AD3d at 642). To satisfy this burden, "'petitioner must eliminate bona fide reasons for the elimination of his [or her] position, show[ing] that no savings were accomplished or that someone was hired to replace him [or her]'" (Matter of Linney v. City of Plattsburgh, 49 AD3d 1020, 1021 [2008], quoting Matter of Mucci v. City of Binghamton, 245 AD2d 678, 679 [1997], lv dismissed 91 NY2d 921 [1998], lv denied 92 NY2d 802 [1998]).

 

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Respondents contend that petitioner failed to satisfy her burden of demonstrating that the position was eliminated in bad faith. In support of this contention, respondents have submitted the affidavit of Gifford, who indicates that Horace Nye "has been losing approximately $2 to $3 million per year for the past several years, [and t]he loss of these monies has been exacerbated by the current economic downturn[ and] the curtailment of state monies and grants…." According to Gifford, in an effort to save money and increase efficiency, "[t]he Lancaster Group was brought in to manage and oversee all of the Horace Nye…medical billings" and "an early retirement incentive was offered," which resulted in the retirement of three individuals from the business office. Gifford also chose to eliminate two Account Clerk/Typist positions — one held by petitioner and another held by Roberta Vincent — and create a new Senior Account Clerk position. As stated by Gifford, while the Senior Account Clerk has all of the duties previously assigned to the Account Clerk/Typist, the new position is "much more expansive and involve[s] supervision; assigning work and instructing new employees; assisting in the preparation of the department budget; preparing budget amendments; maintaining budget control; preparing reports from journals and ledgers; [and] corresponding on matters of policy and procedure."

With respect to filling the new Senior Account Clerk position, Gifford states as follows:

"The examination was given for [the] Senior Account Clerk [position, with] Roberta Vincent scoring a 70 and the [petitioner] scor[ing] a 75. I have been informed and it is my understanding that [Civil Service Law §61] dictates that any one of the top three employees on the eligible list may be chosen for the position. Although [Vincent] scored 5 points less on the test, it was my determination at that time that she was the best person for the job and therefore I hired her."

Civil Service Law §61 (1) provides, in pertinent part, "[a]ppointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such

 

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eligible list who are willing to accept such appointment or promotion." Notably, this so-called "one-of-three" rule does not mandate the selection of the individual with the highest examination score, as "[a]n individual's ability to achieve a high examination score does not necessarily demonstrate his capacity to perform the actual duties of a particular position" (Matter of Cassidy v. Municipal Civ. Serv. Commn. of City of New Rochelle, 37 NY2d at 529; see Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 375 [1997]; Matter of Andriola v. Ortiz, 82 NY2d 320, 324 [1993], cert denied 511 US 1031 [1994]).

Here, respondents had the discretion to appoint any one of the three — or, in this case, two — individuals on the eligible list, and petitioner has failed to demonstrate that Vincent's appointment constituted an abuse of this discretion. Specifically, while petitioner points to the fact that she scored 5 points higher than Vincent on the examination, this higher score did not mandate her appointment to the Senior Account Clerk position. Indeed, in view of the relatively small difference in examination score, together with the fact that Vincent had more seniority and had also held the position of Account Clerk/Typist, the record provides ample support for Vincent's appointment as Senior Account Clerk. Based upon the foregoing, the Court finds that petitioner has failed to satisfy her burden of demonstrating that her Account Clerk/Typist position was eliminated in bad faith and, consequently, dismisses the petition.

The parties' remaining contentions, to the extent not addressed herein, have been deemed academic in light of this decision or found to be without merit.

Therefore, having considered the Petition with exhibits attached thereto, verified November 29, 2011; Answer and Return, dated January 30, 2012; Affidavit of Deborah L.B. Gifford with exhibits attached thereto, sworn to January 31, 2012; Reply Affirmation of Robert P. Bogdan, Esq. with exhibits attached thereto, dated February 2, 2012; Amended Answer and

 

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Return, verified February 10, 2012; and Amended Affidavit of Deborah L.B. Gifford with exhibit attached thereto, sworn to February 10, 2012,1 it is hereby

ORDERED AND ADJUDGED that the petition is dismissed in its entirety.

The original of this Decision and Judgment is returned to counsel for respondents for filing and service with notice of entry. The Notice of Petition dated November 28, 2011 has been filed by the Court together with the above-referenced submissions.

1. On September 12, 2012, the Court sent correspondence to Robert P. Bogdan, Esq. providing him with an opportunity to submit a reply to respondents' amended papers, which reply was to submitted on or before September 28, 2012. To the extent that this date has now passed and nothing has been received, the Court has deemed this opportunity waived and proceeded with issuance of its Decision and Judgment.