Matter of Sikorski-Petritz v. County of Erie

Matter of Sikorski-Petritz v County of Erie (2017 NY Slip Op 04740)

Matter of Sikorski-Petritz v County of Erie

2017 NY Slip Op 04740

Decided on June 9, 2017

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 9, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND NEMOYER, JJ.

854 CA 16-02233

[*1]IN THE MATTER OF DARLENE SIKORSKI-PETRITZ, PETITIONER-APPELLANT,

v

COUNTY OF ERIE, RESPONDENT-RESPONDENT.

JASON R. DIPASQUALE, BUFFALO, FOR PETITIONER-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (ANN E. EVANKO OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered April 7, 2016 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to vacate the decision of respondent, County of Erie (County), to demote her from a position as Counsel-Social Services to a position of Medical Caseworker. Petitioner contends that she was appointed to a permanent or contingent permanent position as Counsel-Social Services and was therefore entitled to the procedural protections of Civil Service Law § 75 prior to her demotion. Supreme Court properly dismissed the petition. The record establishes that the County appointed petitioner to a temporary Counsel-Social Services position, and therefore the protections of Civil Service Law § 75 do not apply (see Matter of Jones v Westchester County Dept. of Social Servs. , 228 AD2d 601, 601; Matter of Ause v Regan , 59 AD2d 317, 323). Contrary to petitioner's contention, the temporary appointment could exceed three months because the appointment was made for a position that was encumbered by an employee on leave of absence (see § 64 [1] [a]). Inasmuch as the Counsel-Social Services position did not become vacant before petitioner's demotion, her temporary appointment to that position could not have ripened into a permanent one (see generally Matter of Albany Permanent Professional Firefighters Assn., Local 2007, IAFF, AFL-CIO v City of Albany , 303 AD2d 819, 819-820; Matter of Wadsworth v Garnsey , 62 AD2d 1141, 1141, lv denied 45 NY2d 706). We have considered petitioner's remaining contentions and conclude that

they are without merit.

Entered: June 9, 2017

Frances E. Cafarell

Clerk of the Court