State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This case comes before the court on a remand from the Appellate Division, Fourth Department. The petitioner, a police officer with the Greece Police Department, was assigned in 1996 to work with a Multiagency Drug Task Force, a position he held until 2003. As the name suggests, this unit is composed of personnel from several jurisdictions. It was not under the direct control or direction of the Greece Police Department or any other individual Town or County force.

The petitioner claims that his duties in the task force were essentially those of an investigator. Indeed, a highly favorable performance evaluation from November, 1998, states that he "has assumed the duties and responsibilities of an investigator" within the task force.

In 2002 the petitioner requested that he be reclassified within the Greece Police Department as an Investigator/Detective. He relied upon the provisions of Civil Service Law § 58 (4) (i), which provides, in relevant part, that

any person who has received permanent appointment to the position of police officer or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation.

This request was denied, and the petitioner thereupon commended this special proceeding.

The respondents moved to dismiss on grounds of timeliness and laches, noting that by the petitioner's own argument his entitlement to reclassification would have accrued in 1998. The late Justice Bergin denied the motion to dismiss and granted the relief demanded in the petition.

On appeal the Fourth Department affirmed the denial of the motion to dismiss, finding that the limitations period commenced to run in 2002, when the petitioner's reclassification request was denied, and that the respondents had shown no prejudice caused by any delay in making the demand--an essential element in the equitable defense of laches. It overturned the grant of judgment, however, noting that the respondents had not yet had the chance to submit an answer and that the record did not permit a resolution of all the legal issues involved.

At this point the answer has in fact been submitted, and the court has before it an extensive record that allows a full consideration of this case as a matter of law. It is, therefore, appropriate that both parties have moved for summary judgment. The court finds, in contrast to the holding of Justice Bergin, that the petitioner has failed to establish his entitlement to relief, primarily because there is no position as Investigator/Detective within the Greece Police Department to which he could be reclassified.

Before addressing the merits there is one preliminary issue raised by the respondents. They claim once again that petitioner is guilty of laches and ask that his petition be dismissed on that ground. Respondents allow that the Fourth Department panel made a ruling on the laches issue, but maintain that this ruling--that respondents had not shown prejudice--was of such a nature that they may now bring evidence of prejudice before the court.

This misconstrues the Appellate Division's decision. It held that the trial court's determination on the merits was premature, but it did not make a similar finding with respect to the motion to dismiss. By moving on grounds of timeliness and laches, the respondents adequately raised these issues and thereafter had a full and fair opportunity to litigate them. Their failure to substantiate their position was conclusively determined by the Appellate Division. That court's reference to the specific area in which the respondents' proof fell short is not an invitation to remedy their failure. They can no more raise these issues on remand than they could by way of a second motion to dismiss.

With respect to the merits, the court recognizes that the papers disclose substantial disagreements of fact. The quality of Mr. Degnan's service seems beyond dispute, but the exact nature of his duties while with the Multiagency Task Force is not so clear. Respondent Rahn and others vociferously dispute the petitioner's account of the nature of his work with the Task Force. These questions of fact must be resolved in the petitioner's favor in weighing the cross-motion to deny the petition.

In making a summary judgment determination, though, the question is whether any of the factual disputes are truly relevant to the legal questions that determine the result. Bearing this in mind, it appears to the court that the petition must fail not because of the nature of the petitioner's job duties but because of the structure of the Greece Police Department itself. In short, petitioner's work with the Multiagency Drug Task Force may show him to be fully qualified for the position of Detective/Investigator, if one existed in the Greece Police Department; but his petition fails because there is no such position.

What is as obvious as Mr. Degnan's great talents and commitment as a police officer is the fact that the organizational structure of the Greece Police Department is extremely simple. At one time there was an informal (i.e., non-Civil Service) position of Detective with pay slightly lower than that of Sergeant. According to the uncontroverted affidavit of Linda Agostinis, who held administrative positions with the personnel department of the Town of Greece, this position was never part of the formal civil service listing, and in the mid-1990s the Monroe County Civil Service Commission instructed the Town to end this practice, as it violated applicable law. Those who had previously been designated Detective were allowed to retain their status, but no further appointments were made to this position. Ms. Agostinis deposed that the last "grandfathered" Detective in the Greece Police Department retired on July 1, 2001. Since that time the position has not existed, although the agreement between the Town and the ranking officers of its police force, the so-called "Gold Badge Club," continues to list its pay scale.

The petitioner is thus asking to be placed in a job which does not exist, either formally or informally. What is more, he is asking to do this on the basis of job responsibilities given him by a body which is not part of the Greece Police Department. This is a situation that is unlike any contemplated by the provisions of the Civil Service Law that he cites.

The legislative finding inserted in Civil Service Law § 58 (4) in order to save its constitutionality, a text repeatedly referred to by petitioner, states

The legislature hereby finds and declares that it is frequently impracticable to ascertain fitness for the positions of detective and investigator within various police or sheriffs departments around the state by means of a competitive examination due to the unique nature of the duties assigned and the intangible personal qualities needed to perform such duties. The legislature further finds that competitive examination has never been employed in many police or sheriffs departments, to ascertain fitness for the positions of detective and investigator within such police or sheriffs departments; such fitness has always been determined by evaluation of the capabilities of an individual (who has in any case received permanent appointment to the position of police officer or deputy sheriff) by supervisory personnel. The legislature further finds that an individual who performs in an investigatory position in a manner sufficiently satisfactory to the appropriate supervisors to hold such an assignment for a period of eighteen months, has demonstrated fitness for the position of detective or investigator within such police or sheriffs department at least as sufficiently as could be ascertained by means of a competitive examination.

This finding implies a certain scenario: that positions of detective and investigator were difficult to accommodate within the civil service system and yet were open to charges of abuse and favoritism for that very reason. In order to reconcile the needs and concerns of both police departments and officers, the legislature determined that eighteen months' satisfactory performance as an investigator or detective de facto would be sufficient to constitute a permanent appointment de jure.

These concerns do not arise, however, in a department like the respondent Police Department. In Greece investigative and detective duties are not reserved for a special rank, and indeed it does not appear that petitioner would have been able to qualify under Civil Service Law § 58 for a promotion while engaged in any of the jobs available to officers within his own department. It was only because he was seconded to the Multiagency Drug Task Force that he was given assignments which were colorably those of an investigator.

The court cannot hold that the job descriptions within the Multiagency Drug Task Force could require the Greece Police Department to create the position of Detective/Investigator. That, in effect, is what the petitioner wants it to do. Regardless of the provisions of the Gold Badge Club agreement, there is no probative evidence that such a position could or does exist in the Town of Greece.

The staffing decisions of a separate agency unrelated to the Town cannot alter this. The petition is therefore denied, on the merits. Only one issue remains. Counsel for petitioner has demanded that sanctions be imposed on opposing counsel for contacting alleged non-party witnesses and interfering with his deposition subpoenas. These allegations are groundless, and indeed it is counsel for petitioner who has been in error. The witnesses in question were members of the Police Department and therefore employees of the respondent Town; they were party witnesses, as their testimony could bind the respondent. In any event, as respondent's counsel points out, the deposition notices were themselves improper. This is a special proceeding, and discovery in a special proceeding is available only upon order of the court (CPLR 408). No such order was ever applied for.

Counsel for respondent may prepare an order denying the petition, without costs or disbursements, and denying all applications for sanctions.

DATED: Rochester, New York

July 6, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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