Opinion
February 8, 1994
Appeal from the Supreme Court, Bronx County (Luis A. Gonzalez, J.).
The evidence in the record indicates that petitioner was "promoted" to the position of plasterer for purposes of Rules for the Classified Service (4 N.Y.CRR) § 4.5 (d) and thereby retained his tenured status as a civil service caretaker upon being terminated as a probationary plasterer ( 4 NYCRR 4.5 [d]). The Housing Authority's Notice of Appointment lists petitioner's former position as "civil service" housing caretaker and his new job as "civil service" plasterer; the Request to Fill Vacancy lists his new position as "Prom[otion] C[ivil] S[ervice] Plasterer". Moreover, the Housing Authority has not controverted petitioner's hearing testimony that he was told by the Authority that his status on the new (higher paying) job would be "civil service plasterer on probation" as opposed to "provisional plasterer", and that he would be "on probation for one year [and that] otherwise my civil service status was intact". Finally, the Authority's chief of employment was unable to cite any statute or regulation in support of her contention that when petitioner allegedly resigned as a caretaker in order to become a plasterer within the same agency, he forfeited his tenure rights.
Concur — Sullivan, J.P., Rosenberger, Kupferman and Ross, JJ.