Gaigal v. County of Suffolk

— In a proceeding pursuant to CPLR article 78 to compel the appellants to certify the petitioner’s seniority date as July 24, 1963 for all employment benefits, the appeal is from a judgment of the Supreme Court, Suffolk County, dated February 16, 1978, which granted the petition. Judgment affirmed, without costs or disbursements. Petitioner was appointed a provisional engineering aide in the Suffolk County Department 641 of Public Works on April 10, 1963. On July 24, 1963 he was given probationary status which, eight weeks later, ripened into permanent status. On January 31, 1964 petitioner received approval of his request, effective January 13, 1964, to transfer from his then-present employment to similar employment with the Town of Smithtown. The Smithtown Supervisor and the Commissioner of Public Works for the county formally consented, in writing, to the request for a transfer. Sometime prior to April, 1971, petitioner took and passed, an open competitive civil service examination for assistant civil engineer. As a result of his position on the eligible list, petitioner was hired for this new position at the Suffolk County Department of Public Works on March 24, 1971, to be effective April 12, 1971. On April 12, 1971 petitioner notified the Town of Smithtown of his resignation, effective April 23, 1971. Special Term held that petitioner’s service was continuous from July 24, 1963, since at no time did he resign from county employment and the county consented to his transfer to the Town of Smithtown. Accordingly, the court ordered that appellants certify petitioner’s seniority date as July 24, 1963 for all employment benefits. Appellants contend that the 1964 transfer from county to town employment constituted a resignation from county employment. They argue further that petitioner did not resume his county employment by transfer from the Town of Smithtown but rather that he was appointed, effective April 12, 1971, as an assistant civil engineer for the county from an eligibility list established after an open, competitive civil service examination. We find appellants’ arguments to be without merit. It is conceded by appellants that in 1964 petitioner fully complied with the applicable rules for transfer of employment. It cannot be said that a valid transfer of employment amounts to a resignation. To hold otherwise would render meaningless the requirement of obtaining the consent of all parties to effect a transfer. Obtaining consent of the parties concerned would be an empty gesture if a transfer is deemed a resignation. Resignations need not be effected by consent. The only rational explanation of the county’s transfer rule as applied to the facts of this case is that once consent is obtained a civil service employee may transfer his employment to a subdivision of the county without loss of seniority. Since petitioner’s county employment was never terminated, his seniority should be computed from the date he originally commenced working for the county. Appellants contend, and the dissenter agrees, that there was no transfer of petitioner from town to county employment in 1971. However, it is our opinion that no such transfer was necessary. Petitioner never terminated his county employment; he did not resign nor was he discharged. Therefore, there was no need to utilize the transfer mechanism. Damiani, J. P., Titone and O’Connor, JJ., concur.