SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

115 

CA 10-01291 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ. 

 

IN THE MATTER OF JAMES F. GALLAGHER, AS 

PRESIDENT OF PROFESSIONAL, CLERICAL, TECHNICAL 

EMPLOYEES ASSOCIATION, ON BEHALF OF HIMSELF 

AND ALL MEMBERS OF PROFESSIONAL, CLERICAL, 

TECHNICAL EMPLOYEES ASSOCIATION AND LARAE HENS, 

PETITIONERS-RESPONDENTS, 

 

V MEMORANDUM AND ORDER

 

BOARD OF EDUCATION FOR BUFFALO CITY SCHOOL 

DISTRICT, JAMES A. WILLIAMS, AS SUPERINTENDENT

OF CITY OF BUFFALO SCHOOL DISTRICT, CITY OF 

BUFFALO DEPARTMENT OF HUMAN RESOURCES AND 

OLIVIA LICATA, AS ADMINISTRATIVE DIRECTOR OF 

DEPARTMENT OF HUMAN RESOURCES, CIVIL SERVICE 

DIVISION, RESPONDENTS-APPELLANTS. 

 

DAVID RODRIGUEZ, ACTING CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF

COUNSEL), FOR RESPONDENTS-APPELLANTS. 

BARTLO, HETTLER & WEISS, KENMORE (PAUL D. WEISS OF COUNSEL), FOR

PETITIONERS-RESPONDENTS. 

 

Appeal from a judgment (denominated order) of the Supreme Court,

Erie County (John F. O’Donnell, J.), entered February 5, 2010 in a

proceeding pursuant to CPLR article 78. The judgment, inter alia,

granted the petition and annulled the abolition of the positions of

Director of Emergency Planning for the Buffalo City School District

and Stenographic Secretary to the Superintendent. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs. 

Memorandum: Petitioners commenced this CPLR article 78

proceeding alleging, inter alia, that respondents acted in bad faith

in abolishing the positions of Director of Emergency Planning for the

Buffalo City School District and Stenographic Secretary to the

Superintendent and in replacing them with nearly identical civilservice exempt confidential positions and seeking to annul the

determination abolishing those positions. Supreme Court properly

granted the petition. 

We reject at the outset respondents’ contention that petitioners

do not have standing to contest the elimination of the position of
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CA 10-01291 

Director of Emergency Planning. Petitioners presented evidence that

union members who were qualified for that position were harmed because

respondents unlawfully eliminated the position and did not schedule a

competitive examination for it (see Matter of Aeneas McDonald Police

Benevolent Assn. v City of Geneva, 92 NY2d 326, 331; Matter of Dental

Socy. of State of N.Y. v Carey, 61 NY2d 330, 333-334). It is not

necessary to examine the individual circumstances of each union member

in order to determine whether standing exists (see Westchester County

Dept. of Pub. Safety Police Benevolent Assn., Inc. v Westchester

County, 35 AD3d 592, 594; cf. Civil Serv. Empls. Assn. v County of

Nassau, 264 AD2d 798, 799-800, lv denied 94 NY2d 759). 

Respondents’ further contention that they were entitled to

abolish the position of Director of Emergency Planning because they

are entitled to abolish a position at any time is without merit. “A

public employer may in good faith abolish a civil service position for

reasons of economy or efficiency . . ., but a position may not be

abolished as a subterfuge to avoid the statutory protection afforded

to civil servants” (Matter of Hartman v Erie 1 BOCES Bd. of Educ., 204

AD2d 1037, 1037; see Matter of Bianco v Pitts, 200 AD2d 741). Here,

the record establishes that the position of Director of Emergency

Planning was abolished in favor of a re-created civil-service exempt

position entitled Homeland Security Coordinator. Respondents,

however, presented no evidence justifying the need for that position

to be re-created for reasons of economy or efficiency, nor did they

justify the need for that position to be classified as civil-service

exempt. The primary duty of both positions was the responsibility for

emergency preparedness, including the implementation of safety plans

and the organization of training programs. In addition, both

positions required a thorough knowledge of local emergency management

practices, as well as a comprehensive understanding of emergency

management. 

We reject respondents’ contention that the claim regarding the

abolition of the Stenographic Secretary position is barred by the

statute of limitations. The relief sought by petitioners is in the

nature of mandamus to compel (see Matter of Weir v Canestrari, 130

AD2d 906, 906-907; Matter of Curtis v Board of Educ. of Lafayette

Cent. School Dist., 107 AD2d 445, 447-448), and thus the four-month

limitations period imposed by CPLR 217 (1) runs from the date upon

which respondents refused to comply with petitioners’ demand for

reinstatement of the position (see Weir, 130 AD2d at 907; Curtis, 107

AD2d at 447). Petitioners demanded reinstatement on March 10, 2008

and commenced this proceeding on May 30, 2008, well within the fourmonth limitations period.

Contrary to respondents’ contention, the record establishes that

the Stenographic Secretary position was abolished in bad faith, for

the same reasons as those set forth with respect to the position of

Director of Emergency Planning. Respondents presented no evidence

justifying the need to replace the Stenographic Secretary position

with the newly created Confidential Secretary position for reasons of

economy or efficiency, nor did they justify the need for that position
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CA 10-01291 

to be classified as civil-service exempt (see generally Hartman, 204

AD2d 1037). Furthermore, the duties of the Confidential Secretary

were substantially similar to those of the Stenographic Secretary. 

Also contrary to respondents’ contention, the claims regarding

the position of Stenographic Secretary are not barred by the doctrine

of res judicata (see generally Smith v Russell Sage Coll., 54 NY2d

185, 192-193, rearg denied 55 NY2d 878; Troy v Goord, 300 AD2d 1086). 

The settlement agreement terminating the 2006 action upon which

respondents rely for their contention with respect to res judicata was

limited to the issue of respondents’ having abolished the Stenographic

Secretary position. Indeed, the settlement agreement did not address

the creation of the civil-service exempt position of Confidential

Secretary, nor did it address respondents’ refusal to appoint the

former employee of the Stenographic Secretary position to this newlycreated position, in accordance with the terms of the settlement

agreement. 

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court