IN RE: John R. LINNEY (2008)

Appeals (1) from a judgment of the Supreme Court (Dawson, J.), entered January 29, 2007 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, direct respondents to reinstate him to his previous employment, and (2) from an order of said court, entered May 31, 2007, which denied petitioner's motion for reconsideration.

Petitioner was employed by respondent City of Plattsburgh (hereinafter respondent) as human resources director beginning in 1999.   In December 2005, petitioner was informed that funding for his position would not be included in the 2006 budget.   However, the position was extended until September 2006, as part of a settlement agreement between the parties regarding a claim filed by petitioner against respondent with the Public Employment Relations Board.   In September 2006, the position of human resources director was converted to a part-time position.   Petitioner challenged the reduction in his position, claiming violation of Civil Service Law § 80.¹  Supreme Court dismissed the petition, finding that petitioner failed to demonstrate that respondent had acted in bad faith.   Supreme Court also denied petitioner's subsequent motion to reargue and renew.   Petitioner now appeals from the judgment dismissing the petition and the order denying his motion.

 “[A] public employer may, in the absence of bad faith, collusion or fraud, abolish positions for purposes of economy or efficiency” (Matter of Mucci v. City of Binghamton, 245 A.D.2d 678, 679, 664 N.Y.S.2d 396 [1997], lv. dismissed 91 N.Y.2d 921, 669 N.Y.S.2d 262, 692 N.E.2d 131 [1998], lv. denied 92 N.Y.2d 802, 677 N.Y.S.2d 72, 699 N.E.2d 432 [1998];  see Matter of Lamb v. Town of Esopus, 35 A.D.3d 1004, 1005, 827 N.Y.S.2d 307 [2006] ).   Moreover, a petitioner has the burden of demonstrating bad faith or an effort to circumvent the Civil Service Law in the elimination of a position (see Matter of Mucci v. City of Binghamton, 245 A.D.2d at 679, 664 N.Y.S.2d 396).   A “petitioner must eliminate bona fide reasons for the elimination of his [or her] position, show that no savings were accomplished or that someone was hired to replace him [or her]” (id. at 679, 664 N.Y.S.2d 396;  accord Matter of Belvey v. Tioga County Legislature, 257 A.D.2d 967, 968-969, 684 N.Y.S.2d 341 [1999] ).

 Here, respondent demonstrated that it was faced with a financial crisis and the outsourcing of many of the job duties of the human resources director resulted in significant savings.   Notably, petitioner did not initially contend that the elimination of the full-time position failed to equate to a savings for respondent.   While he counters that respondent's claim of cost reduction was a subterfuge, arguing that his position was eliminated in retaliation for filing sexual harassment claims on behalf of a coworker against city councilors in 2004, for inquiring about unionizing other managers in 2001 and other interactions between himself and various city officials, we find these conclusory and unsupported allegations to be insufficient to overcome respondent's bona fide reasons for eliminating petitioner's full-time position (see Matter of Lamb v. Town of Esopus, 35 A.D.3d at 1005, 827 N.Y.S.2d 307;  Matter of Mucci v. City of Binghamton, 245 A.D.2d at 680, 664 N.Y.S.2d 396) or to show an entitlement to a full hearing prior to the elimination (see Matter of Heron v. City of Binghamton, 307 A.D.2d 524, 526, 762 N.Y.S.2d 687 [2003], lv. denied 100 N.Y.2d 515, 769 N.Y.S.2d 202, 801 N.E.2d 423 [2003];  Matter of Belvey v. Tioga County Legislature, 257 A.D.2d at 969, 684 N.Y.S.2d 341).

Finally, the denial of petitioner's motion to reargue is not appealable (see e.g. Matter of King v. Town Council of Coxsackie, 35 A.D.3d 1120, 1120, 827 N.Y.S.2d 717 [2006] ).   Moreover, Supreme Court did not err in denying the motion to renew as petitioner failed to submit evidence that would change the court's prior determination (see CPLR 2221[e][2];  Matter of Cooke Ctr. for Learning & Dev. v. Mills, 19 A.D.3d 834, 837, 797 N.Y.S.2d 173 [2005], lv. dismissed and denied 5 N.Y.3d 846, 805 N.Y.S.2d 546, 839 N.E.2d 900 [2005] ).

ORDERED that the judgment and order are affirmed, without costs.

FOOTNOTES

1.   Subsequent to Supreme Court's determination on the petition, respondent eliminated the human resources director position entirely.

STEIN, J.

CARDONA, P.J., SPAIN, CARPINELLO and KAVANAGH, JJ., concur.