Matter of Carmichael v Hite

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Matter of Carmichael v Hite 2012 NY Slip Op 33158(U) December 28, 2012 Supreme Court, Albany County Docket Number: 3498-12 Judge: George B. Ceresia Jr 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. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In the Matter of the Application of the WILLIAM L. CARMICHAEL, JON1 T.JOHNSON, and SUSAN KENT, as President of the NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO, Petitioners, For an Order and Judgment: Pursuant to CPLR Article 78 -against- Index No. 3498- 12 IWI NO. 01-12-ST3765 PATRICLA A. HITE,as both the Director of the Division of Classification and Compensation of the New York State Department of Civil Service and as an Acting Commissioner of the New York St& Civil Service Commission; the DIVISION OF CLASSIFICATION AND COMPENSATION OF THENEW YORK STATE DEPARTMENT OF C M L SERVICE, and the NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, Respondents. Special Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding Appearances: LISA M. KING Attorney for Petitioners (Steven M. Klein, Esq. and Katherine J. Vorwald, Esq., Of Counsel) I 168-70Tray-Schenectady Road P.0, Box 12414 Albany, New York 12212-24 14 [* 2] ERIC T. SCHNEIDERMAN Attorney General of the State of New.York Attorney for Respondents (Stephen M. Kerwin, Esq., Of Counsel) The Capitol Albany, New York 12224-0341 DECISION/ORDEWJUDGIENT George B. Ceresia, Jr., Justice In January 2012, the New York State Department of Corrections and Community Supervision(hereinafter DOCCS) requestedthat respondent?approve title stfucture changes for a group of job titles, including two at issue i this proceeding. SpecificaIly, DOCCS n proposed to consolidatethejob titles of Supervising Correction CounseIor and Facility Parole Officer 2 into a new title - Supervising Offender Rehabilitation Coordinator - based on its view that the duties, knowledge, skills and abilities necessary to perform the job(s) are quite similar lsee Verified Petition, Ex. A, p. 12).] Respondents approved DOCCS request effective March 8,2012 (see Verified Petition, Ex. B). Thereafter, Kenneth Brynien, petitioners William Cmichael and Joni Johnson s bargaining agent and former President of the New York State Public Employees Federation (hereinafter PEF), requested reconsideration and rescission of the consolidation decision Verified Petition, Ex. A, p. 1-1 1). In May 2012, respondents declined to rescind the title structure change & Verified Petition, Ex. C). A 1 of these job titles are allocated to salary grade 22. 1 -2- On June 14, 2012, PEF filed an [* 3] administrative agpeaI with respondent New York State Civil Service Commission (hereinafter CSC) (E Verified Petition, Ex. D . ) Only six days later, petitioners commenced the instant CPLR article 78 proceeding seeking an order and judgment: (I) declaring that respondents job title consolidation determination was arbitrary, capricious, irrational and contrary to Civil Service Law 0 118; (2) declaring that respondents determinationvioIated eke constitutional mandate of merit and fitness set forth i Article 5, 5 6 of the New York State Constitution; and (3) directing n rescission of the titIe structure changes, restoration of the former title series, and placement of the impacted employees in the appropriate titles. As such, respondents moved to dismiss the petition based upon petitioners failure to exhaust their administrative remedy. DISCUSSION It is well settled that a party seeking to challenge the action of an administrative agency must first exhaust available administrative remedies (Matter o f Sabino v DiNapoli, 90 AD3d 1392, 1393 [2011]; see Town of Oyster Bay v Kirkland, 19 WY3d 1035, 1038 t20121). Here, it is undisputed that CSC has yet to issuc a determination with respect to PEF s administrative appeal. However, petitioners assert that it would be futile exhaust their administrative remedy Town of Oyster Bay v Kirkland, 19 NY3d at 1038; (Matter of Sabino v DiNamli, 90 AD3d at 1393). In this regard, petitioners speculate that Due to procedurd requirements and scheduling constraints, CSC was unable to meet to consider md render a determination with respect to petitioners administrative appeal before the return date of the instant proceeding, August 3,2012 & Kiyonga Aff., 717). -3- [* 4] the CSC will likely defer to respondents decision and fail to perform an independent review of the underlying facts Petitioners Brief, dated August 1,20 12, p. 6). To the contrary, the record is devoid of evidence that the CSC has inappropriately predetermined the issues raised by petitioners. Further, in the C O W ~view, resolution of ~S factual mafters regarding chi1 service job title classifications is best left in the first instance to the administrative agency so that a clearer formuIation of and the rationales for agency policy may be klly aired Conservation, 87 NYZd 136, 143 [1995]; see Matter of Sabino v DiNapoli, 90 AD3d at 1394). In particular, a factual record regarding the substantial simiIarity of the affectedjob titles, and the extent to which the duties of the consolidated positions conflict, has yet to be fully developed Town of Oyster Bay v Kirkland, 19 NY3d at 1039). Moreover, it is quite conceivable that, following a factual review, CSC could provide the relief sought by petitioners. Given the foregoing, the Court frnds that petitioners have failed to demonstrate that pursuit of their administrative remedy would be futile && e.g. M & 90 AD3d at 1394). Accordingly it i s ORDERED and ADJUDGED that respondents motion to dismiss the petition is hereby granted, without prejudice. Those arguments not specifically addressed herein were found to be unpersuasive, or otherwise rendered academic, -4- [* 5] This DecisiodOrderlJudgmentis being returned to the Attorney General. All original supporting documentation is being filed with the County Clerk s Office. The signing of this Decisiom OrderlJudgment shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that mle relating to f i h entry and notice of 7 Dated: Albany, New York December2 20 12 George B. Ceresia, Jr. Supreme Court Justice Papers Considered: 1. Notice of Petition, dated June 19,20 12; Verified Petition, dated June 19,20 12, with annexed exhibits; Brief on Behalf of Petitioners, dated June 19,2012; 2. Notice of Motion, dated July 26,2012; Affidavit of Nancy B.Kiyonaga, sworn to July 16, 2012, with annexed exhibits; Memorandum of Law in Support of Respondents Motion to Dismiss Based on an Objection i Point of Law: Failure to n Exhaust, dated July 25,2012; and 3. Affirmation of Katherine J. Vorwald, Esq., dated August 1,2012; Petitionas Brief i Opposition to Respondents Motion to Dismiss, dated August 1,20 12. n -5-

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