| Matter of Linney v City of Plattsburgh |
| 2008 NY Slip Op 02076 [49 AD3d 1020] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of John R. Linney, Appellant, v City of Plattsburgh etal., Respondents. |
—[*1] John E. Clute, Corporation Counsel, Plattsburgh (John E. Clute of counsel), forrespondents.
Stein, J. Appeals (1) from a judgment of the Supreme Court (Dawson, J.), entered January29, 2007 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to, among other things, direct respondents to reinstate him to his previousemployment, and (2) from an order of said court, entered May 31, 2007, which deniedpetitioner's motion for reconsideration.
Petitioner was employed by respondent City of Plattsburgh (hereinafter respondent) ashuman resources director beginning in 1999. In December 2005, petitioner was informed thatfunding for his position would not be included in the 2006 budget. However, the position wasextended until September 2006, as part of a settlement agreement between the parties regarding aclaim filed by petitioner against respondent with the Public Employment Relations Board. InSeptember 2006, the position of human resources director was converted to a part-time position.Petitioner challenged the reduction in his position, claiming violation of Civil Service Law§ 80.[FN*][*2]Supreme Court dismissed the petition, finding that petitionerfailed to demonstrate that respondent had acted in bad faith. Supreme Court also deniedpetitioner's subsequent motion to reargue and renew. Petitioner now appeals from the judgmentdismissing the petition and the order denying his motion.
"[A] public employer may, in the absence of bad faith, collusion or fraud, abolish positionsfor purposes of economy or efficiency" (Matter of Mucci v City of Binghamton, 245AD2d 678, 679 [1997], lv dismissed 91 NY2d 921 [1998], lv denied 92 NY2d802 [1998]; see Matter of Lamb v Townof Esopus, 35 AD3d 1004, 1005 [2006]). Moreover, a petitioner has the burden ofdemonstrating bad faith or an effort to circumvent the Civil Service Law in the elimination of aposition (see Matter of Mucci v City of Binghamton, 245 AD2d at 679). A "petitionermust eliminate bona fide reasons for the elimination of his [or her] position, show that no savingswere accomplished or that someone was hired to replace him [or her]" (id.; accordMatter of Belvey v Tioga County Legislature, 257 AD2d 967, 968-969 [1999]).
Here, respondent demonstrated that it was faced with a financial crisis and the outsourcing ofmany of the job duties of the human resources director resulted in significant savings. Notably,petitioner did not initially contend that the elimination of the full-time position failed to equate toa savings for respondent. While he counters that respondent's claim of cost reduction was asubterfuge, arguing that his position was eliminated in retaliation for filing sexual harassmentclaims on behalf of a coworker against city councilors in 2004, for inquiring about unionizingother managers in 2001 and other interactions between himself and various city officials, we findthese conclusory and unsupported allegations to be insufficient to overcome respondent's bonafide reasons for eliminating petitioner's full-time position (see Matter of Lamb v Town ofEsopus, 35 AD3d at 1005; Matter of Mucci v City of Binghamton, 245 AD2d at 680)or to show an entitlement to a full hearing prior to the elimination (see Matter of Heron v Cityof Binghamton, 307 AD2d 524, 526 [2003], lv denied 100 NY2d 515 [2003];Matter of Belvey v Tioga County Legislature, 257 AD2d at 969).
Finally, the denial of petitioner's motion to reargue is not appealable (see e.g. Matter of King v Town Council ofCoxsackie, 35 AD3d 1120, 1120 [2006]). Moreover, Supreme Court did not err indenying the motion to renew as petitioner failed to submit evidence that would change the court'sprior determination (see CPLR 2221 [e] [2]; Matter of Cooke Ctr. for Learning & Dev. v Mills, 19 AD3d 834,837 [2005], lv dismissed and denied 5 NY3d 846 [2005]).
Cardona, P.J., Spain, Carpinello and Kavanagh, JJ., concur. Ordered that the judgment andorder are affirmed, without costs.
Footnote *: Subsequent to Supreme Court'sdetermination on the petition, respondent eliminated the human resources director positionentirely.