[Download] "Matter and rew P. Dolan" by Supreme Court of New York ~ eBook PDF Kindle ePub Free
eBook details
- Title: Matter and rew P. Dolan
- Author : Supreme Court of New York
- Release Date : January 05, 1979
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 55 KB
Description
Appeal from a judgment of the Supreme Court at Special Term, entered August 1, 1978 in Albany County, which granted petitioners motion for consolidation, declared the attempted termination of petitioners employment null and void, granted petitioner additional sick leave and restored him to his former position as Senior Attorney. Upon the present record, it appears that subsequent to his initial application for CPLR article 78 relief in the natureof mandamus seeking sick leave at half pay, the appellant mooted the issue by granting such leave. However, the appellant notified the petitioner that as of March 20, 1978,if he were still absent from work on sick leave, his position would be terminated pursuant to section 73 of the Civil Service Law. Following the termination of his employment, the petitioner moved by way of an order to show cause to compel his reinstatement. While there may be some doubt as to the sufficiency of the papers herein, Special Term appears to have treated the motion as one to amend the petition and we do not find that it abused its discretion in exercising its jurisdiction. However, procedurally, Special Term erred in determining the matter on the merits prior to the filing of an answer by the appellant (CPLR 7804, subd [f]; Matter of Bier v Sarafan, 54 A.D.2d 1054). Nevertheless, the appellant upon oral argument seeks a final determination on the merits and in this case it appears appropriate to consider the merits (cf. Matter of Bayswater Health Related Facility v New York State Dept. of Health, 57 A.D.2d 996; Matter of De Vito v Nyquist, 56 A.D.2d 159, affd 43 N.Y.2d 681). It is well established that pursuant to section 73 of the Civil ServiceLaw, * the appellant had the authority to dismiss thepetitioner (Matter of Cooperman v Commissioner, Dept. of Correctional Servs. of State of N.Y., 57 A.D.2d 989, 990; Matter of Bodnar v New York State Thruway Auth., 52 A.D.2d 345, app dsmd 40 N.Y.2d 845). The petitioners status as a civil service employee was no better than probationary on and after March 20, 1978, regardless of whether or not he remained ill. Accordingly, Special Term erred when it found that the employer lacked the authority to terminate the employment. Insofar as the petitioners allegations of bias and animosity are concerned, the reason for the exercise of discretion by the commissioner is not required to be considered as long as there is no allegation of unlawful discrimination. Judgment reversed, on the law, and petition dismissed, without costs. Mahoney, P. J., Sweeney, Kane and Herlihy, JJ., concur; Main, J., not taking part.