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Matter of Levy v State of New York, Dept. of Civ. Serv. 2007 NY Slip Op 32833(U) September 12, 2007 Supreme Court, Albany County Docket Number: 0266307/2007 Judge: George B. Ceresia Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT

COUNTY OF ALBANY

In The Matter of the application of JEFFREY H. LEVY; JOSEPH GAGLIARDI; and THE NEW Y O N STATE CORRECTIONAL OFFICERS AND POLICE BENEVOLENT ASSOCIATION, INC. LARRY M. FLANAGAN, JR.., President, Petitioners, -againstSTATE OF NEW YORK, DEPARTMENT OF CIVIL SERVICE; and STATE OF NEW YORK, DIVISION OF PAROLE, Respondents, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 0 1 -07-ST7589 Index No. 2663-07 Appearances: Sheehan Greene Carraway Golderman & Jacques LLP Attorneys for Petitioners (Erin N. Walsh, Esq. of Counsel) 99 Pine Street Albany, New York 12207 Andrew M. Cuomo Attorney General State of New York Attorney For Respondents (Jeffrey P. Mans, Assistant Attorney General of Counsel) The Capitol Albany, New York 12224

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DECISION/ORDE WJUDGMENT

George B. Ceresia, Jr., Justice The petitioners have commenced the instant CPLR Article 78 proceeding seeking a declaration that respondent Department of Civil Service's failure to order, schedule and conduct a civil service examination for the position Senior Warrant and Transfer Officer is arbitrary and capricious, contrary to law and in violation of Civil Service Law 0 65 (2) and Article 5 ,

0 6 of the New York State Constitution, and ordering respondents to vacate the

provisional appointment to the Senior Warrant and Transfer Officer position and to hold an examination for such position within 90 days. The individual petitioners hold the position of Warrant and Transfer Officer within the New York State Division of Parole. In April 2006, the respondents created the new position of Senior Warrant and Transfer Officer to supervise the 15 employees statewide in the position Warrant and Transfer Officer. The new position also includes responsibility for certain training duties. Certification as both a General Topics Instructor and Firearms Instructor is a necessary qualification for the position, as is one year of service in the position Warrant and Transfer Officer. In May 2006 respondents made a provisional appointment pending preparation of an appropriate promotional examination. appointment has continued to date. Civil Service Law 0 65 (2) provides: "No provisional appointment shall continue for a period of in excess of nine months." It further requires that where a provisional
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That provisional

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appointment has existed for a period of one month, a civil service examination must be conducted as soon as practicable thereafter in order to prevent the provisional appointment from exceeding such time period. Petitioners have clearly made a prima facie showing that respondents are in violation of the technical requirements of Civil Service Law 3 65 (2), as the incumbent in the provisional position has held such position for well in excess of nine months and no promotional examination has been given. By their answer, respondents have raised objections in point of law that the petition fails to state a cause of action, that petitioners do not have standing to maintain the proceeding, and that the proceeding is moot. Respondents contend that the petition fails to state a cause of action because respondents have scheduled an examination as soon as practicable. They have shown that at the time of the provisional appointment, there were no more than three persons statewide who met all of the qualifications for the position of Senior Warrant and Transfer Officer. Pursuant to Civil Service Law

0 52 (7) respondents could

have made a permanent appointment to the single vacancy in the position of Senior Warrant and Transfer Officer without givin? a promotional examination. However, in accord with the principles and purposes of the Civil Service Law and Article 5 ,

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