BROWN v. CITY OF NEW YORK DEPARTMENT OF PARKS AND RECREATION (2001)

Judgment, Supreme Court, New York County (Stanley Sklar, J.), entered January 7, 2000, which denied petitioner's application to compel respondent to reinstate him to a provisional position he held from August 1985 to May 1986 with back pay to May 1986, and dismissed the petition, unanimously affirmed, without costs.

The proceeding seeks to enforce a Civil Service Commission order of November 13, 1990 that directed respondent to offer petitioner the first provisional appointment available after March 7, 1990 for the position of Assistant Architect.   The reference to March 7, 1990 was to a prior Civil Service Commission order that, after finding that petitioner's disqualification from the position of provisional Assistant Architect was wrongfully based on an unsatisfactory employment history, directed respondent to reinstate petitioner to such provisional position “if that is consistent with the provisions of the Civil Service Law”. However, as has been the case at all times since the Civil Service Commission orders, petitioner's reappointment to the provisional position he held for almost nine months in 1985-1986 would not be lawful under Civil Service Law § 65, which authorizes provisional appointments, for a period not exceeding nine months, only of persons who are qualified for the position and only when an eligible list for the position does not exist.   As the Civil Service Commission held in a 1994 review of respondent's rejection of petitioner's application to sit for a competitive examination for Assistant Architect posted in April 1990, petitioner no longer has the minimum educational qualifications for the position of Assistant Architect, which were raised in 1988.   Thus, respondent's April 1994 appointment of a provisional Assistant Architect who possessed the qualifications described in the April 1990 examination posting was not a violation of the Civil Service Commission orders.   It appears that no other provisionals have been appointed since the Civil Service Commission orders, and a new eligible list established in April 1999 currently precludes any provisional appointments.