Opinion
June 7, 1991
Appeal from the Supreme Court, Erie County, Ostrowski, J.
Present — Dillon, P.J., Boomer, Green, Pine and Davis, JJ.
Judgment unanimously reversed on the law with costs, motion denied, petition reinstated and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: Petitioner was employed in the civil service position of Executive Deputy Commissioner of the Erie County Department of Social Services. With the adoption of Erie County's 1989 budget, however, her position was abolished. While a public employer may in good faith abolish a civil service position for reasons of economy or efficiency (see, Matter of Aldazabal v Carey, 44 N.Y.2d 787; Matter of Wipfler v Klebes, 284 N.Y. 248; Matter of O'Donnell v Kirby, 112 A.D.2d 936), a position may not be abolished as a subterfuge to avoid the statutory protection afforded to civil servants (see, Switzer v Sanitary Dist. No. 7, 59 A.D.2d 889, 890, appeal dismissed 43 N.Y.2d 845). The issue whether petitioner's position was abolished in good faith cannot be resolved on the moving papers. A trial is required (see, Matter of Terrible v County of Rockland, 81 A.D.2d 837, 838).