| Matter of Lee v Albany-Schoharie-Schenectady-Saratoga Bd. of Coop.Educ. Servs. |
| 2010 NY Slip Op 00629 [69 AD3d 1289] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Michele Lee, Appellant, vAlbany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services et al.,Respondents. |
—[*1] Maynard, O'Connor, Smith & Catalinotto, L.L.P., Albany (Robert A. Rausch of counsel), forAlbany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services,respondent. McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), forAlbany County Department of Civil Service and another, respondents.
Garry, J. Appeal from a judgment of the Supreme Court (McNamara, J.), entered October10, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondentAlbany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services terminatingpetitioner's employment.
In 1989, petitioner was appointed to a permanent competitive position with respondentAlbany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services(hereinafter BOCES). In 1994, she resigned to accept a provisional appointment to a differentposition. She continued at BOCES in this provisional position for the next 12 years. During thisperiod, as the result [*2]of an audit by respondent Albany CountyDepartment of Civil Service (hereinafter the Department), BOCES was required to reclassifynumerous positions, including petitioner's. In May 2006, the Department conducted anexamination for the proposed reclassified position. Petitioner took the examination, received afailing score, and her employment was thereafter terminated in December 2006. The reclassifiedposition was filled from a list of eligible persons who had passed the examination.
Petitioner commenced this proceeding under CPLR article 78 seeking, alternatively,reinstatement to her former provisional position with back pay or reinstatement to her formerpermanent position. BOCES moved to dismiss for failure to state a claim. In September 2007,Supreme Court granted the motion in part, holding that petitioner was not entitled to the relief ofreinstatement and back pay as a provisional employee. In October 2008, the court dismissed thepetition in its entirety. Petitioner now appeals.[FN*]
Petitioner contends that her termination was arbitrary and capricious because respondentsfailed to comply with the certification requirements of Civil Service Law § 22 and certainother civil service requirements in reclassifying her position. We agree with Supreme Court that,whether or not the reclassification was properly accomplished, petitioner is not entitled to therelief she seeks. It is undisputed that petitioner was a provisional employee (see CivilService Law § 65). As such, she was subject to termination by BOCES "at any timewithout charges preferred, a statement of reasons given or a hearing held" (Matter ofPreddice v Callanan, 69 NY2d 812, 814 [1987]). Provisional appointments are "merestop-gaps" (Matter of City of LongBeach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 NY3d 465, 471[2007] [internal quotation marks and citation omitted]), and provisional employees are notentitled to the expectations of continued employment and other protections accorded topermanent employees by the Civil Service Law (see id.; Koso v Greene, 260 NY491, 495 [1933]). The remedies of reinstatement and back pay are not available to provisionalemployees (see Matter of Preddice v Callanan, 69 NY2d at 814). Although the Court ofAppeals has stated in "generalized dictum" (Matter of City of Rome v State of N.Y. Pub.Empl. Relations Bd., 283 AD2d 817, 819 [2001], lv dismissed 96 NY2d 936 [2001],lv denied 97 NY2d 607 [2001]) that "other remedies may be available" toprovisional employees in the event of statutory or constitutional violations (Matter ofPreddice v Callanan, 69 NY2d at 814 [emphasis added]), petitioner alleges nodiscriminatory intent, improper motive, or other violation related to her termination that couldserve as a basis for any such remedy. Her claim that respondents violated Civil Service Law§ 22 in reclassifying her position does not constitute a claim that her termination forfailure [*3]to pass a competitive examination violated CivilService Law § 65, which governs provisional appointments, or any other constitutional orstatutory provision.
The fact that petitioner held her provisional appointment for 12 years, though far beyond thenine-month limitation established by Civil Service Law § 65 (2), accords her no additionalrights. The constitutional requirement that civil service appointments "shall be made accordingto merit and fitness" (NY Const, art V, § 6) mandates that provisional positions may besucceeded by permanent appointments only as a result of a civil service examination andeligibility; such positions do not ripen into permanency as the result of statutory violations or thepassage of time (see Matter of City of Long Beach v Civil Serv. Empls. Assn.,Inc.—Long Beach Unit, 8 NY3d at 470-471; see also Matter of Whalen v City ofMechanicville, 289 AD2d 849, 851 [2001]). To permit greater rights to accrue due to anemployer's "abuse [of] its authority" in continuing a provisional appointment beyond thestatutory deadline would merely perpetuate the harm to the constitutional merit and fitnessrequirement (Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—LongBeach Unit, 8 NY3d at 472). Thus, Supreme Court properly dismissed petitioner's claimsrelated to her provisional appointment.
Supreme Court found that petitioner's separate cause of action seeking reinstatement to herformer encumbered permanent position was moot because, upon petitioner's demand, theDepartment placed her on the preferred eligible list for that position pursuant to Civil ServiceLaw § 81 (1), while simultaneously advising her that the position was deemed to beabolished (see Civil Service Law § 80). Petitioner now contends on appeal that shealso has encumbrance rights to other comparable positions at BOCES. Our review is precludedby her failure to seek such relief in her petition or otherwise raise the claim before SupremeCourt (see Bender v Peerless Ins.Co., 36 AD3d 1120, 1121 [2007]; Matter of Carter v Goord, 8 AD3d 771, 772 [2004]).
Cardona, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: Although petitioner attemptedto appeal from the September 2007 nonfinal order as well as the October 2008 final judgment, noappeal as of right lies from a nonfinal order in a CPLR article 78 proceeding (see CPLR5701 [b] [1]). However, the appeal from the final judgment brings up for review the nonfinalorder (see CPLR 5501 [a] [1]; Matter of Saratoga Lake Protection & Improvement Dist. v Department ofPub. Works of City of Saratoga Springs, 46 AD3d 979, 981 n 1 [2007], lvdenied 10 NY3d 706 [2008]; Matter of Hebel v West, 25 AD3d 172, 175 n 1 [2005], lvsdenied 7 NY3d 706 [2006]).