Opinion
06-09-2017
In the Matter of Darlene SIKORSKI–PETRITZ, Petitioner–Appellant, v. COUNTY OF ERIE, Respondent–Respondent.
Jason R. Dipasquale, Buffalo, for Petitioner–Appellant. Hurwitz & Fine, P.C., Buffalo (Ann E. Evanko of Counsel), for Respondent–Respondent.
Jason R. Dipasquale, Buffalo, for Petitioner–Appellant.
Hurwitz & Fine, P.C., Buffalo (Ann E. Evanko of Counsel), for Respondent–Respondent.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to vacate the decision of respondent, County of Erie (County), to demote her from a position as Counsel–Social Services to a position of Medical Caseworker. Petitioner contends that she was appointed to a permanent or contingent permanent position as Counsel–Social Services and was therefore entitled to the procedural protections of Civil Service Law § 75 prior to her demotion. Supreme Court properly dismissed the petition. The record establishes that the County appointed petitioner to a temporary Counsel–Social Services position, and therefore the protections of Civil Service Law § 75 do not apply (see Matter of Jones v. Westchester County Dept. of Social Servs., 228 A.D.2d 601, 601, 644 N.Y.S.2d 640 ; Matter of Ause v. Regan, 59 A.D.2d 317, 323, 399 N.Y.S.2d 526 ). Contrary to petitioner's contention, the temporary appointment could exceed three months because the appointment was made for a position that was encumbered by an employee on leave of absence (see § 64[1][a] ). Inasmuch as the Counsel–Social Services position did not become vacant before petitioner's demotion, her temporary appointment to that position could not have ripened into a permanent one (see generally Matter of Albany Permanent Professional Firefighters Assn., Local 2007, IAFF, AFL–CIO v. City of Albany, 303 A.D.2d 819, 819–820, 755 N.Y.S.2d 323 ; Matter of Wadsworth v. Garnsey, 62 A.D.2d 1141, 1141, 404 N.Y.S.2d 458, lv. denied 45 N.Y.2d 706, 408 N.Y.S.2d 1024, 380 N.E.2d 337 ). We have considered petitioner's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.