Opinion
Argued September 13, 1988
Decided October 18, 1988
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Lawrence E. Kahn, J.
William F. Sheehan and Peter T. Gumaer for appellant.
Robert Abrams, Attorney-General (Peter G. Crary, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the court's memorandum ( 132 A.D.2d 905). We do not condone the practice of the Department of Civil Service, itself charged with State-wide administration of the statutes at issue here, of filling "temporarily vacant" positions on its own staff on a provisional basis, when it concededly has no intention of ordering the examination unambiguously mandated by Civil Service Law § 65 (2). The Department's questionable practice cannot, however, result in a permanent appointment for petitioner when there is no basis in law for converting his provisional appointment to a permanent one.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur; Judge BELLACOSA dissents and votes to reverse in another memorandum.
Order affirmed, with costs, in a memorandum.
I respectfully dissent and vote to reverse and grant the petition for the reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney at the Appellate Division ( 132 A.D.2d 905, 907). I note especially, however, my concurrence in that part of the majority's memorandum questioning what I would characterize as the evasive misconduct of the Civil Service Commission's own personnel management policy towards its employee in this case — an unacceptable irony inflicted by the very agency charged with administering civil service protections State-wide.