Matter of Waters v. New York St. Department

Full title: In the Matter of RODERICK A. WATERS, Respondent, v. NEW YORK STATE…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Apr 19, 1990

160 A.D.2d 1112 (N.Y. App. Div. 1990)

554 N.Y.S.2d 80

Opinion

April 19, 1990

Appeal from the Supreme Court, Albany County (Torraca, J.).

Mercure, J.

On December 18, 1986 petitioner, an honorably discharged veteran, was appointed by respondent to the position of vocational instructor IV, in the competitive class of the classified service (see, Civil Service Law §§ 40, 44). Permanent appointment was contingent upon successful completion of a probationary term of one to three years (see, 4 NYCRR 4.5 [a] [1] [ii]; [5] [ii]). Petitioner was terminated, without a hearing, effective February 11, 1988. He then commenced this CPLR article 78 proceeding asserting, inter alia, his right to a hearing upon stated charges due to his status as an honorably discharged veteran (see, Civil Service Law § 75 [b]). Supreme Court granted the petition and respondent appeals.

We reverse. The precise legal issue presented here, whether an honorably discharged veteran may be discharged from a permanent position after completion of eight weeks of service (see, 4 NYCRR 4.5 [a] [5] [ii]) and during the probationary term (see, Civil Service Law § 63; 4 NYCRR 4.5 [a] [5] [i]), without notice of charges and a hearing, has recently been addressed by the Court of Appeals and answered in the affirmative (see, Matter of Vaillancourt v. New York State Liq. Auth., 75 N.Y.2d 889, affg on mem below 153 A.D.2d 531). Civil Service Law § 75 (1) (b), which has the effect of "extend[ing] the protection afforded those employees in the competitive class to honorably discharged veterans employed in any classified civil service position" (Matter of Vaillancourt v. New York State Liq. Auth., 153 A.D.2d 531, 534, affd on mem below 75 N.Y.2d 889, supra), does not "abrogate the provisions of Civil Service Law § 63 requiring completion of a probationary term nor well-established judicial authority denying the right to a pretermination hearing to a veteran on probation" (supra, at 534).

Judgment reversed, on the law, without costs, determination confirmed and petition dismissed. Kane, J.P., Casey, Weiss, Mercure and Harvey, JJ., concur.