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M E M O R A N D U M
SUPREME COURT, STATE OF NEW YORK
ByLALLY, J. IAS/TRIALPART 5ROBERTA MILLER.Plaintiff(s),INDEX NO.:288936/92-against- CAL. NO.: 2005H1225THE COUNTY OF NASSAU and THE NASSAUCOUNTY CIVIL SERVICE COMMISSION,Defendant(s)._______________________________________LOUIS D. STOBER, JR. NASSAU COUNTY ATTORNEY Attorney for Plaintiff Attorney for Defendant250 Old Country Road, #205 One West StreetGarden City, NY 11530 Mineola, NY 11501This is an action by a former Nassau County employee forreinstatement with back pay pursuant to
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77 of the Civil ServiceLaw. Plaintiff Roberta Miller was employed by the Nassau CountyDepartment of Senior Citizen Affairs as the Senior Citizen SpecialProgram Coordinator. Beginning in January 1992, approximately 2,600County employees were demoted or laid off from their positions becauseof a $115 million budget deficit. Plaintiff was laid off from herposition as of January 28, 1992. Plaintiff alleges that she waslaid off in bad faith based upon her being a member of the DemocraticParty. It is undisputed that the Nassau County Executive was aRepublican at the time of plaintiff
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s layoff. Defendant Countydenies that plaintiff was laid off in bad faith but concedes thatplaintiff is entitled to one year
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s salary because her position wasrequired to be abolished by the legislature (See
Torre v Nassau
,86 NY2d 421 [1995]). At the conclusion of plaintiff
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s case, defendants moved pursuantto CPLR 4401 for judgment as a matter of law, and decision was reservedby the court. The jury having found that plaintiff was laid offin bad faith, the court will review the legal sufficiency of theevidence in support of plaintiff
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s cause of action. A court may granta motion for judgment as a matter of law only where it finds that,upon the evidence presented, there is no rational process by whichthe trier of fact could base a finding in favor of the non-movingparty (
Szczerbiak v Pilat
, 90 NY2d 553, 556 [1997]).
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The trialcourt must afford the party opposing the motion every inference whichmay properly be drawn from the facts presented, and the facts mustbe considered in a light most favorable to the non-movant
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(Id).
 
Miller v NC - 2 - Index No. 28936/92Plaintiff began her employment with Nassau County in 1979, when,after taking a civil service test, she was hired by the Office ofEmployment and Training as a Manpower Counselor I. In this position,plaintiff worked as a job placement counselor under the ComprehensiveEmployment and Training Act, a federally-funded program. Afterscoring high on another civil service test, plaintiff became a JobDeveloper with the Office of Employment and Training in 1981. Asa Job Developer, plaintiff counseled employees who weretransitioning from the CETA program to jobs in the private sector.In March 1983, plaintiff was terminated as a Job Developer dueto the ending of the CETA program. However, plaintiff was placedon a preferred list and in March 1984 was hired by the Departmentof Senior Citizen Affairs as a Job Developer. In this position,plaintiff ran several programs for people over age 55 who were seekingemployment and supervised approximately ten employees. Plaintiffworked at the Department of Senior Citizen Affairs office which waslocated at 250 Fulton Avenue in Hempstead.Plaintiff subsequently took a civil service test for theposition of special program coordinator and received the secondhighest score on the examination. Plaintiff was appointed to theposition of Special Program Coordinator on January 27, 1991. TheSpecial Program Coordinator title was classified as a grade 14, asopposed to grade 12, which was the classification applicable to thetitle of Job Developer. Although plaintiff was the only grade 14at the Fulton Avenue office, there were other grade 14s at the mainoffice of the Department which is located in Mineola. The effectof the promotion was to raise plaintiff
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s annual salary to $42,000,from the $38,000 which she had been earning in her previous title. As Special Program Coordinator, plaintiff continued to run the sameemployment programs which she had managed as a Job Developer. Theseprograms provided a portion of plaintiff
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s salary, and it was partof her responsibilities to write
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grants,
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or funding applications,for the various programs.There were approximately 80 employees in the Department ofSenior Citizens Affairs. Including plaintiff, 27 employees of theDepartment were laid off in response to the revenue shortfall. According to the deposition testimony of Rena Iacono, the DeputyCommissioner of the Department, plaintiff
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s position was eventuallyfilled by another County employee. It appears that plaintiff wasthe only Democrat employed by the Department of Senior Citizens Affairs. However, no proof was offered as to how many Democratswere employed by other departments of the County or how they wereeffected by the layoffs.
 
Miller v NC - 3 - Index No. 28936/92The New York State Constitution contains a mandate that
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[A]ppointments and promotions in the civil service ... shall bemade according to merit and fitness to be ascertained, so far aspracticable, by examinations, which so far as practicable, shallbe competitive
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(Art. V,
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6).
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The principle embodied in the mandatedoubtless was to give something like permanency of tenure toappointees in civil service, and above all to put an end to the viciouspractice which had grown up of changing employees whenever theappointing power was changed without any cause except theunrestrained will of the person who happened for the time being tobe at the head of the department
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(
Wipler v Klebes
, 284 NY 248, 254[1940]).However,
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[T]hose vested with the authority to create or abolishpositions and to adopt a budget [may] decide that no person shouldbe employed to perform the duties of the position and thatdiscontinuance of the position would promote efficiency and economy
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 (Id). Nevertheless,
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[T]here is permanency of tenure so long assome person is employed in the same or similar position under adifferent title and performs substantially similar services
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(Idat 255). Thus, the court
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looks behind the form of the ordinanceto determine its intended purpose or effect, and where an ordinancein legal form cloaks an illegal purpose and produces an illegal result... the ordinance is not adopted in good faith and has no effect
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 (Id). Where members of the party not in power are targeted, notupon a change of administration, but during times of austerity, thedismissals are equally in bad faith (See
Gowan v Tully 
, 45 NY2d 32,37 [1978]).Consistent with the constitutional mandate,
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80(1) of the CivilService Law provides that
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Where, because of economy, consolidation,or abolition of functions, curtailment of activities or otherwise,positions in the competitive class are abolished or reduced in rankor salary grade, suspension or demotion, as the case may be, amongincumbents holding the same or similar positions shall be made inthe inverse order of original appointment on a permanent basis inthe classified service in the service of the governmentaljurisdiction in which such abolition or reduction of positionsoccurs.
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A public employer may, in the absence of bad faith,collusion, or fraud, abolish positions for purposes of economy orefficiency (
Cohen v. Central School District
, 306 AD2d 732, 733 [3dDept 2003]). Once a decision to eliminate positions is made,
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 80(1)
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s requirement that suspension or demotion be in
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inverse order
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 means that seniority rights of employees must be respected(
Chautauqua v CSEA
, 8 NY3d 513, 521 [2007]). As a matter oflong-standing interpretation, the phrase
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same or similar positions
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 refers to positions with the same title (
McDermott v Office of MentalHealth
, 204 AD2d 901 [3d Dept 1994]). Thus, where a public employee
of 00

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