Opinion
May 13, 1971
Appeal from a judgment of the Supreme Court at Special Term, entered October 13, 1970 in Broome County, which dismissed petitioner's application in a proceeding under CPLR article 78 for reinstatement to the position of Director of Urban Renewal for the City of Binghamton and of the Binghamton Urban Renewal Agency. On January 21, 1957 petitioner was provisionally appointed Director of Urban Renewal in the Executive Department of the City of Binghamton. On January 23, 1958 he received a permanent appointment subject to successful completion of a probationary period. Subsequently, legislation was enacted creating the Binghamton Urban Renewal Agency (BURA), a public benefit corporation effective April 29, 1962, (General Municipal Law, § 572; General Corporation Law, § 3, subd. 4). After the creation of BURA petitioner became its Director and served in the same capacity as he had as Director of Urban Renewal. BURA, ostensibly, conferred civil service status on petitioner and other employees. It was later learned that the employees of BURA were not subject to civil service. Petitioner was notified by letter dated November 3, 1966 that his position was no longer under civil service. Without objection, he continued to serve until November 12, 1969, when upon request he resigned and was appointed Director of Zoning and Planning. On February 20, 1970 he demanded reinstatement as Director of BURA and, upon refusal, commenced the present proceeding on May 15, 1970. By stipulation of the parties there are no questions of fact presented. Petitioner contends, among other things, that he acquired permanent civil service status and could not be deprived of this by the technical change in the structure of the Binghamton city government. Assuming arguendo that this is correct, we nevertheless agree with Special Term that the petition must be dismissed. The petitioner had notice on November 3, 1966 that he was no longer under civil service. He made no complaint, accepted the new designation and salary and ultimately resigned to take another position with the city. A lapse of 3 1/2 years ensued before he brought the present proceeding. During this period he accepted the benefits of his position and acquiesced in the decision removing him from civil service. Under these circumstances, the petition is not only time-barred, but petitioner is also guilty of laches. ( Austin v. Board of Higher Educ. of City of New York, 5 N.Y.2d 430; Matter of Burke v. Village of Johnson City, 36 A.D.2d 202; Matter of Tilt v. Krone, 31 A.D.2d 561.) Judgment affirmed, without costs. Herlihy, P.J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.