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Matter of Oneida County v. Hasenauer

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 23, 1988
145 A.D.2d 984 (N.Y. App. Div. 1988)

Opinion

December 23, 1988

Appeal from the Supreme Court, Oneida County, Lynch, J.

Present — Denman, J.P., Boomer, Lawton and Davis, JJ.


Judgment unanimously affirmed without costs. Memorandum: In violation of the collective bargaining agreement between the Sheriff of Oneida County and the Oneida County Deputy Sheriff's Benevolent Association, the Sheriff terminated the services of petitioner, a Deputy Sheriff, without cause. The collective bargaining agreement provided that, after three years of satisfactory service, "all civil deputies shall be accorded the same rights and privileges that competitive class employees receive under section 75 Civ. Serv. of the Civil Service Law as it relates to removal and suspension", and that "no employee shall be subjected to disciplinary action or discharged without just cause." Petitioner had completed three years of satisfactory service.

Petitioner brought this CPLR article 78 proceeding to annul the action of the Sheriff in terminating his services. Special Term, citing Matter of Sirles v Cordary ( 49 A.D.2d 330, 334-335, affd 40 N.Y.2d 950), dismissed the petition on the ground that "a Sheriff is not `properly subjected to a contractual provision whereby his power to terminate the employment of the * * * deputies performing civil functions is limited.'" The reason for this rule is that the Sheriff is personally responsible for the actions of his civil Deputies. An exception to the rule exists where, by legislative enactment, the county has assumed liability for those Deputies (McMahon v Michaelian, 38 A.D.2d 60, affd 30 N.Y.2d 507). Here, by Local Laws, 1973, No. 1, the county assumed the liability for the acts or omissions "of any employee of the county in the office of the sheriff, done or made in the performance of an official duty or for the performance of which the county is paid or receives compensation or fee". Special Term held that this assumption of liability applies only to county employees, and not to civil Deputy Sheriffs, who are employees of the Sheriff. We disagree. This is the same provision contained in the local law referred to in McMahon v Michaelian (supra, at 64) where the court stated: "This code provision clearly places the appointees of the Sheriff in the service of the county."

We agree, however, with the determination of Special Term that the petition must be dismissed because of the failure of petitioner to exhaust his administrative remedies. As respondents point out, a new collective bargaining agreement has been entered into and the grievance procedure in the agreement covers the dispute in issue in this proceeding. Petitioner has failed to show that he has sought relief under the grievance procedure.


Summaries of

Matter of Oneida County v. Hasenauer

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 23, 1988
145 A.D.2d 984 (N.Y. App. Div. 1988)
Case details for

Matter of Oneida County v. Hasenauer

Case Details

Full title:In the Matter of ONEIDA COUNTY DEPUTY SHERIFF'S BENEVOLENT ASSOCIATION et…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 23, 1988

Citations

145 A.D.2d 984 (N.Y. App. Div. 1988)

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