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June 1, 2012

Employer’s abolishment of a position challenged


Employer’s abolishment of a position challenged
Eugenio v City of Yonkers, N.Y, 2012 NY Slip Op 04006, Appellate Division, Second Department

When the City Council of the City of Yonkers abolished the position of Clerk II Spanish Speaking, the former incumbent filed an Article 78 petition seeking a court order reinstating her to her former position with back pay. Supreme Court denied the petition and the Appellate Division affirmed the lower court’s dismissal of the petition.

The Appellate Division explained that "[A] public employer may abolish civil service positions for the purpose of economy or efficiency." In the event that action is challenged, the challenger “has the burden of proving that the employer did not act in good faith in abolishing the position."

Finding that Supreme Court properly determined that the former incumbent failed to sustain her burden of proving her position was abolished in bad faith, the Appellate Division commented that under the circumstances, the former employee’s request for further inquiry amounted to "no more than an expression of hope insufficient to warrant deferral of judgment"

As to mechanics involved in abolishing a position, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these §§80 and 80-a of the Civil Service Law (1976 Opinions of the Attorney General 7).

The decision is posted on the Internet at:

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