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Matter of Village v. Suffolk County Dept

Appellate Division of the Supreme Court of New York, Second Department
Jan 22, 1990
157 A.D.2d 784 (N.Y. App. Div. 1990)

Opinion

January 22, 1990

Appeal from the Supreme Court, Suffolk County (Vaughn, J.).


Ordered that the judgment is reversed, on the law, and the proceeding is dismissed on the merits, with costs.

The record establishes that the respondents McHugh and Leigh were each appointed as an "Acting Police Officer" by resolution of the Village Board of the Village of Nissequogue. As such they do not come within the terms of Civil Service Law § 100 (5), which applies only to those "holding a position in the classified service of a civil service division by appointment or promotion". Insofar as their appointment was temporary or provisional under Civil Service Law § 64, the duration of such temporary or provisional appointment extending over several years was unlawful and contrary to the spirit of N.Y. Constitution, article V, § 6 (see, Civil Service Law § 64; Matter of Montero v. Lum, 68 N.Y.2d 253, 259). In Matter of Montero v. Lum (supra, at 259), the Court of Appeals said that

"[s]uch stringent limitations are necessary to ensure adherence to the clear constitutional preference for merit selections. * * *

"It is well settled that even an unlawfully extended period of temporary service cannot ripen into a permanent appointment" (see also, Matter of Reis v. New York State Hous. Fin. Agency, 74 N.Y.2d 724). Therefore, McHugh and Leigh, being temporary employees with unlawfully extended appointments could not come within the terms of Civil Service Law § 100 (5), and the court erred in applying that statute to this case.

We do not find it necessary to pass on the issue of the constitutionality of Civil Service Law § 100 (5) (see, Matter of Beach v. Shanley, 62 N.Y.2d 241, 254; People v. Felix, 58 N.Y.2d 156, 161; see also, Ashwander v. Valley Auth., 297 U.S. 288, 341-348). Mangano, J.P., Lawrence, Kooper and Harwood, JJ., concur.


Summaries of

Matter of Village v. Suffolk County Dept

Appellate Division of the Supreme Court of New York, Second Department
Jan 22, 1990
157 A.D.2d 784 (N.Y. App. Div. 1990)
Case details for

Matter of Village v. Suffolk County Dept

Case Details

Full title:In the Matter of VILLAGE OF NISSEQUOGUE, Respondent, v. SUFFOLK COUNTY…

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

Date published: Jan 22, 1990

Citations

157 A.D.2d 784 (N.Y. App. Div. 1990)