IN RE: Application of Charles ENSLEY (1999)

Order and judgment (one paper), Supreme Court, New York County (Helen Freedman J.), entered December 1, 1997, which, in an article 78 proceeding challenging respondents' appointment of provisional caseworkers to the Administration for Children's Services (“ACS”), insofar as appealed from, (1) held that such provisional caseworkers could be retained provided that within nine months respondents administer a competitive examination to such provisional caseworkers, thereafter establish an eligible list consisting of those provisional caseworkers who pass such examination, and thereafter promptly use such eligible list to replace the provisional caseworkers;  (2) held that petitioners' claims with respect to validity of provisional appointments of caseworkers by ACS before May 10, 1996 are time-barred;  and (3) held that respondents could appoint only such other eligibles who pass an English language proficiency examination, unanimously affirmed, without costs.   Respondents' cross appeal from the same order and judgment, unanimously dismissed, without costs, as academic.

 Petitioners' argument that the order and judgment is inconsistent both with the IAS court's decision and the Civil Service Law is unpreserved.   There is no record that petitioners raised any objection to the order and judgment settled on the IAS court's decision.   We would only comment that the order and judgment is not irreconcilable with the court's correct determination that the provisional appointments at issue were improperly made (see, Ensley v. New York City Dept. of Personnel, 170 A.D.2d 298, 566 N.Y.S.2d 24, lv. denied 78 N.Y.2d 862, 578 N.Y.S.2d 877, 586 N.E.2d 60) simply because, in an effort to avoid confusion and disorder in ACS, it provides for the eventual, rather than immediate, termination of the provisional employees (see, Matter of Andresen v. Rice, 277 N.Y. 271, 282, 14 N.E.2d 65).   Respondents' cross appeal, which asks this Court to reconsider Ensley (supra ), is academic.

MEMORANDUM DECISION.