Shafer v. Gambino

Yesawich Jr., J. Appeal from an amended judgment of the Supreme Court (Keniry, J.), entered October 9, 1991 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motions to dismiss the petition on the ground that the challenged administrative determination is not ripe for judicial review. On December 5, 1989, respondent Division of Criminal [948] Justice Services (hereinafter DCJS) requested respondent Civil Service Commission (hereinafter the Commission) to place two newly created positions, associate and senior training technicians in the drug abuse resistance education program set up by a DCJS bureau, in the noncompetitive class; petitioner opposed the classification on the ground that the positions could properly be filled through competitive examination. Without setting forth reasons for its decision, the Commission, at a meeting held in July 1990, approved the request and added the positions to the noncompetitive class, subject to the Governor’s approval. Respondents Kenneth Buniak and Alton Hoke were appointed to the new positions, without examination, in February and July 1990, respectively, and have been serving on a temporary basis since that time. In November 1990, petitioner commenced this proceeding charging that placement of these two positions in the noncompetitive class was arbitrary and capricious. Respondents moved to dismiss the proceeding on the ground that the classification determination was neither final nor ripe for judicial review. Supreme Court granted the motion and dismissed the petition. Petitioner appeals. Inasmuch as these positions remain classified as competitive until action is taken by the Governor, the reclassification of which petitioner complains has not yet taken effect and, indeed, may never take effect, thus, there is no actual controversy ripe for judicial review (see, Matter of Weeks v Kraft, 147 App Div 403, 405-407, appeal dismissed 205 NY 585). Petitioner is not, however, remediless. This concern that the Governor may never act on the resolution, thereby circumventing the requirements of the Civil Service Law and frustrating the intent of the constitutional mandate of merit selection, can be raised by bringing a proceeding to compel the Governor to act on the resolution. If the Governor approves the resolution, the classification can then be challenged. As for petitioner’s assertion that because some two years have passed since these positions were filled a de facto reclassification of them has been effected, this is an argument that goes not to the finality of the reclassification, but rather to the issue of whether the temporary appointments of Buniak and Hoke were unlawfully extended (see, Civil Service Law §§ 42, 64; Matter of Village of Nissequogue v Suffolk County Dept. of Civ. Serv., 77 NY2d 915, 916-917), a matter which is not before us. Weiss, P. J., Levine and Crew III, JJ., concur.