State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 3, 2016 521546
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In the Matter of OLIVER
CUTLER,
Appellant,
v MEMORANDUM AND ORDER
TOWN OF MAMAKATING,
Respondent.
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Calendar Date: January 12, 2016
Before: Peters, P.J., McCarthy, Rose and Lynch, JJ.
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Sussman & Watkins, Goshen (Michael H. Sussman of counsel),
for appellant.
Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Eric
M. Kurtz of counsel), for respondent.
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Rose, J.
Appeal from a judgment of the Supreme Court (McGuire, J.),
entered November 25, 2014 in Sullivan County, which dismissed
petitioner's application, in a combined proceeding pursuant to
CPLR article 78 and action for declaratory judgment, to review a
determination of respondent terminating petitioner's employment.
Petitioner commenced this combined proceeding pursuant to
CPLR article 78 and action for declaratory judgment seeking,
among other things, a determination that respondent had illegally
and in bad fath abolished his position as respondent's parks
maintenance supervisor. Supreme Court dismissed the petition in
its entirety and declared respondent's actions to be lawful. We
affirm.
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"[A] public employer may, in the absence of bad faith,
collusion or fraud, abolish positions for purposes of economy or
efficiency" (Matter of Mucci v City of Binghamton, 245 AD2d 678,
679 [1997], appeal dismissed 91 NY2d 921 [1998], lv denied 92
NY2d 802 [1998]; accord Matter of Linney v City of Plattsburgh,
49 AD3d 1020, 1021 [2008]; see Civil Service Law § 80 [1]).
Respondent explained through the affidavits of its Supervisor and
a member of its Town Board that because its parks maintenance
department consisted of only petitioner and one part-time
laborer, it could achieve greater economy and efficiency by
abolishing the supervisory position in favor of hiring additional
laborers. Petitioner's managerial duties were shifted to the
Supervisor and two full-time and one part-time laborer positions
were created at an overall cost savings.
The burden was then on petitioner to demonstrate that his
position was eliminated in bad faith or as a subterfuge to
circumvent his rights under the Civil Service Law (see Matter of
Lamb v Town of Esopus, 35 AD3d 1004, 1005 [2006]; Matter of
Chanecka v Board of Educ., Broome-Tioga BOCES, 243 AD2d 1011,
1012-1013 [1997], appeal dismissed 91 NY2d 920 [1998], lv denied
92 NY2d 802 [1998]). However, the mere reassignment of duties,
in and of itself, does not constitute proof of bad faith (see
Matter of Cohen v Crown Point Cent. School Dist., 306 AD2d 732,
734 [2003]; Matter of Shields v Dinga, 222 AD2d 816, 818 [1995]).
Nor is there any indication in the record of any personal or
political animosities that would suggest some deceitful purpose
of ousting and replacing petitioner. Rather, petitioner's
conclusory and unsupported assertions fail to refute the Town
Board's showing that its actions were part of a good faith effort
to reorganize a municipal department for the purposes of reducing
costs and increasing efficiency (see Matter of Lamb v Town of
Esopus, 35 AD3d at 1005; Matter of Belvey v Tioga County
Legislature, 257 AD2d 967, 968 [1999]; Matter of Mucci v City of
Binghamton, 245 AD2d at 679; Matter of Shields v Dinga, 222 AD2d
at 818-819).
Petitioner alternatively argues that because the closed
executive session in which the unrecorded vote to abolish his
position was taken violated the Open Meetings Law (see Public
Officers Law art 7), Supreme Court had good cause to void the
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Town Board's action. While a discussion of the abolishment of
petitioner's specific position for reasons of economy and
efficiency was a proper subject of an executive session (see
Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v
City of Plattsburgh, 185 AD2d 518, 518-519 [1992]), we agree with
petitioner that the Town Board violated the Open Meetings Law by
inadequately describing the purpose for entering into the
executive session as, simply, "personnel issues" (see Public
Officers Law § 105 [1] [f]; Matter of Gordon v Village of
Monticello, 207 AD2d 55, 57-58 [1994], mod on other grounds 87
NY2d 124 [1995]). We also agree with petitioner that it was
improper for the Town Board to vote on its decision without
recording the vote in the executive session minutes, even though
it did not "appropriate public moneys" (Public Officers Law § 105
[1]; see Public Officers Law § 106 [2]; Matter of Specht v Town
of Cornwall, 13 AD3d 380, 381 [2004]; Town of Moriah v Cole-
Layer-Trumble Co., 200 AD2d 879, 881 [1994]).
Nevertheless, we find that petitioner has not shown the
requisite "good cause" for declaring the Town Board's action to
be void (Public Officers Law § 107 [1]; see Matter of Gernatt
Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 686 [1996];
Matter of New York Univ. v Whalen, 46 NY2d 734, 735 [1978];
Matter of Frigault v Town of Richfield Planning Bd., 107 AD3d
1347, 1352 [2013]). Indeed, "the record does not suggest that
the [Town Board's] failure to comply with the precise
requirements of the Open Meetings Law was anything more than mere
negligence," which does not constitute good cause to invalidate
the Town Board's otherwise permissible actions (Matter of Cunney
v Board of Trustees of the Vil. of Grand View, N.Y., 72 AD3d 960,
962 [2010]; see Matter of Roberts v Town Bd. of Carmel, 207 AD2d
404, 405 [1994], lv denied 84 NY2d 811 [1994]).
Peters, P.J., McCarthy and Lynch, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court