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April 24, 2014

An employee who becomes unavailable for work as a result of other employment may be terminated from his or her position



An employee who becomes unavailable for work as a result of other employment may be terminated from his or her position
2014 NY Slip Op 02644, Appellate Division, Third Department

A part-time police officer [Plaintiff] serving with a police department was appointed to a full-time position with another police department. Plaintiff’s appointment with the new police agency was subject to his satisfactorily completing a probationary period. In addition, the decision of the Appellate Division notes that Plaintiff’s new employment precluded him from engaging in outside employment for at least one year.

When Plaintiff was notified by his former employer that his employment was terminated because his new position rendered him unavailable for work, he filed a petition pursuant to CPLR Article 78 contending that his former employer’s action violated Civil Service Law §80 [sic].* Plaintiff asked Supreme Court to annul his termination and an order directing that his former employer immediately reinstate him.

Supreme Court dismissed the petition and plaintiff appealed.

Petitioner argued that his former employer improperly abolished his position and that he is entitled to remain employed despite being unavailable to perform any services for his employer for at least a year. The Appellate Division disagreed and affirmed the lower court’s ruling.

The court explained Civil Service Law §80 applies where a  “where a civil service position is eliminated due to ‘economy, consolidation or abolition of functions, curtailment of activities or otherwise,’ then suspension, demotion or termination must occur ‘in the inverse order of original appointment.’”

Here, however, the Appellate Division said that §80 “is entirely inapplicable here” as Plaintiff’s former employer did not eliminate or abolish petitioner's position. Rather, as the termination letter sent to Plaintiff indicates, Plaintiff was simply terminated so that his former employer could fill the position with someone who was available to work.

* Civil Service Law §80 applies in situations where a permanent employee of the State or a political subdivision of the State in the competitive class of the classified service is laid off as the result of the abolishment of his or her position. Civil Service Law §80-a applies to an employee of the State as the employer serving in a position in the noncompetitive class of classified service if the event his or her position is abolished.

The decision is posted on the Internet at:

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