Green v. City of New York

—Judgment, Supreme Court, New York County (William Davis, J.), entered June 28, 2001, insofar as appealed from, dismissing petitioner’s CPLR article 78 petition seeking her reinstatement to the position of Associate Fraud Investigator in respondent Human Resources Administration, unanimously affirmed, without costs.

No issue of fact is raised warranting a hearing into whether, as petitioner claims, there have been vacancies in the Associate Fraud Investigator position that petitioner provisionally held when she took leave of absence and to which she now seeks reinstatement under Civil Service Law § 71. The recruitment flyer on which petitioner relies as evidence of such vacancies, dated some three months after she returned to work, stated only that the position would be filled as vacancies arose. Absent better evidence of vacancies, which petitioner’s resort to the Freedom of Information Law failed to turn up, the IAS court correctly held that respondents fully complied with section 71 by appointing petitioner, upon her return from leave of absence, to her permanent position of Fraud Investigator Level II, while placing her on a preferred list for the Associate position (cf. Matter of Diaz v New York State Off. of Mental Health, 188 AD2d 903). Concur — Andrias, J.P., Saxe, Rosenberger, Lerner and Friedman, JJ.