SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

970 

CA 16-01043 

PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

 

IN THE MATTER OF DALE BARHITE, PETER HOOSER, 

SALVATORE STASSI, DANA VINCH AND PATRICK 

TOUSLEY, PETITIONERS-RESPONDENTS, 

V MEMORANDUM AND ORDER

TOWN OF DEWITT, TOWN BOARD OF TOWN OF DEWITT, 

POLICE COMMISSION OF TOWN OF DEWITT, EDWARD M. 

MICHALENKO, TOWN SUPERVISOR OF TOWN OF DEWITT 

AND JAMES C. HILDMANN, CHIEF OF POLICE OF TOWN 

OF DEWITT, RESPONDENTS-APPELLANTS. 

 

CERIO LAW OFFICES, SYRACUSE (DAVID W. HERKALA OF COUNSEL), FOR

RESPONDENTS-APPELLANTS.

MARILYN D. BERSON, NEWBURGH, FOR PETITIONERS-RESPONDENTS.

 

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

Onondaga County (Walter W. Hafner, Jr., A.J.), dated September 9, 2015

in a proceeding pursuant to CPLR article 78. The judgment, inter

alia, directed respondents to give petitioners full seniority credit

for services rendered as police officers in the Village of East

Syracuse. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by deleting the words “arbitrary and

capricious, without a rational basis, in violation of lawful

procedure, affected by errors of fact and law and” from the second

decretal paragraph and, as modified, the judgment is affirmed without

costs. 

Memorandum: Petitioners are police officers who were formerly

employed by the Village of East Syracuse, which dissolved its police

department. The Village entered into an amended intermunicipal

contract with respondent Town of Dewitt, wherein the two

municipalities agreed that the functions of the Village Police

Department would be transferred to the Town, and that the Village

would transfer five police officers from its police department to the

Town police department “at the salary step and grade based upon their

years of service with the Village.” The Town assigned each petitioner

a salary step that was at a lower seniority level than warranted by

that petitioner’s length of service. The DeWitt Police Benevolent

Association filed a grievance pursuant to the Town’s collective

bargaining agreement and demanded arbitration thereon. That grievance
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CA 16-01043 

remained pending arbitration throughout this proceeding. Petitioners

commenced this CPLR article 78 proceeding seeking to compel

respondents to place them in the seniority level that corresponds with

their years of service, with credit for the time they were employed by

the Village. Respondents appeal from a judgment, denominated a

decision and order, in which Supreme Court granted the petition,

concluded that respondents acted arbitrarily and capriciously, and

directed them to award each petitioner seniority credit for each year

of service as a Village police officer.

Contrary to the contention of respondents, the court properly

concluded that Civil Service Law § 70 (2) requires respondents to

award petitioners full seniority credit for the time that they served

as police officers in the Village. Initially, we note that

respondents have abandoned on appeal their contention that section 70

does not apply to the transfers herein (see Ciesinski v Town of

Aurora, 202 AD2d 984, 984). They contend only that the statute does

not require them to grant petitioners year-for-year credit for their

prior service in the Village. We reject that contention. In

pertinent part, the statute mandates that “[o]fficers and employees

transferred to another governmental jurisdiction pursuant to the

provisions of this subdivision shall be entitled to full seniority

credit for all purposes for service rendered prior to such transfer in

the governmental jurisdiction from which transfer is made” (§ 70 [2]). 

When interpreting a statute, the statute’s “[w]ords . . . are to be

given their plain meaning without resort to forced or unnatural

interpretations” (Castro v United Container Mach. Group, 96 NY2d 398,

401; see Matter of Orchard Glen Residences & Carriage Homes v Erie

County Indus. Dev. Agency, 303 AD2d 49, 51, lv denied 100 NY2d 511)

and, therefore, in general, “unambiguous language of a statute is

alone determinative” (Riley v County of Broome, 95 NY2d 455, 463; see

Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d

557, 565). In addition, in reviewing a related statute, the Court of

Appeals has noted that the purpose of Town Law § 153 is “to place the

transferee squarely in the shoes of the officer who has served all

such time in the town to which the transfer is made” (Matter of Town

of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., 66 NY2d

722, 725), and the legislative history and wording of section 70 (2)

demonstrates that the Legislature intended the same result to occur in

this situation. 

We reject respondents’ further contention that the approval of

petitioners’ salary and benefits by the Onondaga County Civil Service

Department is an interpretation of its own governing statute by an

administrative agency, to which we must defer. Although “deference is

generally given to an agency’s interpretation of a statute that the

agency is responsible for administering, courts need not give any

deference to the agency’s interpretation where no specialized

expertise is involved and the question is simply a matter of reading

and analyzing the statute to determine its intent” (Matter of United

Univ. Professions v State of New York, 36 AD3d 297, 299; see Matter of

Gruber [New York City Dept. of Personnel-Sweeney], 89 NY2d 225, 231-

232). Where, as here, the issue “is one of pure statutory reading and

analysis, dependent only on accurate apprehension of legislative
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CA 16-01043 

intent” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459),

“judicial review is less restricted as statutory construction is the

function of the courts” (Matter of Rosen v Public Empl. Relations Bd.,

72 NY2d 42, 48 [internal quotation marks omitted]). 

We reject respondents’ contention that this proceeding should be

dismissed because petitioners failed to exhaust their administrative

remedies. “[P]etitioner[s] had every right to seek redress for the

alleged violation of [their] statutory rights in this proceeding, even

after having begun a grievance procedure which related exclusively to

an alleged violation of [their collective bargaining agreement]. ‘The

issues presented and the remedies sought in each forum were separate

and distinct’ ” (Matter of Marino v Board of Educ. of Hauppauge Union

Free Sch. Dist., 262 AD2d 321, 322; see Matter of Kaufmann v Board of

Educ., 275 AD2d 890, 890; Matter of Barrera v Frontier Cent. Sch.

Dist., 227 AD2d 890, 891). 

Consequently, respondents’ further contention that petitioners

are not entitled to mandamus relief is without merit. “It is well

settled that the remedy of mandamus is available to compel a

governmental entity or officer to perform a ministerial duty, but does

not lie to compel an act which involves an exercise of judgment or

discretion . . . A party seeking mandamus must show a ‘clear legal

right’ to relief . . . The availability of the remedy depends ‘not on

the [petitioner’s] substantive entitlement to prevail, but on the

nature of the duty sought to be commanded—i.e., mandatory,

nondiscretionary action’ ” (Matter of Brusco v Braun, 84 NY2d 674,

679). Here, as discussed above, Civil Service Law § 70 (2) states

that transferees such as petitioners “shall be entitled to full

seniority credit for all purposes.” Consequently, they have a 

“ ‘clear legal right’ ” under CPLR 7803 (1) to the relief sought

(Brusco, 84 NY2d at 679).

We agree with respondents’ further contention, however, that the

court erred insofar as it declared, inter alia, that respondents acted

arbitrarily and capriciously in failing to comply with the statute. 

That standard of review is set forth in CPLR 7803 (3), which applies

to proceedings “in the nature of mandamus to review, which differs

from mandamus to compel in that a petitioner seeking the latter must

have a clear legal right to the relief demanded and there must exist a

corresponding nondiscretionary duty on the part of the administrative

agency to grant that relief . . . [, whereas in] a proceeding in the

nature of mandamus to review . . . , a court examines an

administrative action involving the exercise of discretion” (Matter of

Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753,

757). Respondents had no discretion under the statute to determine

the seniority level to which petitioners should be assigned, and they

therefore cannot have acted arbitrarily or capriciously. We therefore

modify the judgment accordingly. 

Respondents’ contention that petitioners are not entitled to

mandamus relief because they did not demand that respondents comply

with the statute is without merit because, inter alia, petitioners

commenced this proceeding by the “filing of the petition, which ‘may
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CA 16-01043 

be construed as the demand’ ” (Matter of Speis v Penfield Cent. Schs.,

114 AD3d 1181, 1182; see Matter of Thomas v Stone, 284 AD2d 627, 628,

appeal dismissed 96 NY2d 935, lv denied 97 NY2d 608, cert denied 536

US 960).

We have considered respondents’ remaining contentions and

conclude that they are without merit.

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court