Summary
In Matter of Reis v. New York State Hous. Fin. Agency (74 NY2d 724, 726), the Court of Appeals held that, for purposes of determining when an employee's probationary period commences, the controlling date is the date of the employee's formal appointment to permanent status (see also Matter of Atkinson v. Koch, 161 AD2d 152, 153; Matter of Hill v. City of New York, 160 AD2d 528, 529).
Summary of this case from In re of EaslingOpinion
Argued June 1, 1989
Decided June 30, 1989
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Harold Tompkins, J.
Barry A. Weprin, David Wirtz and Sheryl Teitel Winkler for appellant.
Andrew D. Reis, respondent pro se. Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Peter G. Crary of counsel), for New York State Civil Service Commission and another, amici curiae. Peter L. Zimroth, Corporation Counsel (Francis F. Caputo and Elizabeth I. Freedman of counsel), for City of New York, amicus curiae.
MEMORANDUM.
The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, without costs, and the petition dismissed against respondent Agency.
Petitioner's probationary period commenced on the date he was appointed a permanent employee, February 7, 1985, not the date he passed the qualifying examination, December 18, 1984 (Civil Service Law § 61). Accordingly, petitioner was not entitled to the protection of the provisions of Civil Service Law § 75 until one year from the February date, adjusted for absences (see, 4 N.Y.CRR 4.5 [f]), and the Agency was entitled to remove him, as it did, without formal charges or hearing.
In holding that the December date controlled, the Appellate Division relied on our decision in Matter of Montero v Lum ( 68 N.Y.2d 253). In that case, the petitioner contended that the one-year period should be measured from the date of his temporary appointment. We rejected that contention, holding that the one-year period could not commence until the applicant became eligible for permanent appointment, which could only occur after successful completion of the qualifying examination. Coincidentally, the date of petitioner Montero's permanent appointment and the examination date were the same and so we spoke of the date of the examination to distinguish it from the date of the temporary appointment. Our decision in Montero did not change the statutorily fixed rule that the date of permanent appointment controls for purposes of measuring the probationary period.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Judgment appealed from and order of the Appellate Division brought up for review, reversed, etc.