IN RE: CIVIL SERVICE EMPLOYEES ASSOCIATION (2007)

In a proceeding pursuant to CPLR article 78 to review a determination of the Rockland County Board of Cooperative Educational Services, dated May 25, 2005, which, without a hearing, abolished the civil service position of clinical psychologist, and to reinstate the petitioners Norman Stein, Robert Allan, and Jeffrey Goidel to their respective positions of clinical psychologist with back pay, benefits, and seniority, the petitioners appeal from a judgment of the Supreme Court, Rockland County (Weiner, J.), dated March 24, 2006, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 A public employer may abolish civil service positions for the purpose of economy or efficiency (see Civil Service Law § 80[1];  Matter of Aldazabal v. Carey, 44 N.Y.2d 787, 788, 406 N.Y.S.2d 32, 377 N.E.2d 476;  Matter of Hritz-Seifts v. Town of Poughkeepsie, 22 A.D.3d 493, 803 N.Y.S.2d 656), “as long as the position is not abolished as a subterfuge to avoid statutory protection afforded civil servants before they are discharged” (Matter of Della Vecchia v. Town of N. Hempstead, 207 A.D.2d 484, 484-485, 616 N.Y.S.2d 56).

 “[O]ne who challenges the validity of such an act has the burden of proving that the employer did not act in good faith in abolishing the position” (Matter of Rosenthal v. Gilroy, 208 A.D.2d 748, 749, 617 N.Y.S.2d 509;  see Matter of Bianco v. Pitts, 200 A.D.2d 741, 607 N.Y.S.2d 78).  “Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee” (Matter of Rosenthal v. Gilroy, supra at 749, 617 N.Y.S.2d 509).   A full hearing must be held when triable issues of fact exist as to bad faith (see Matter of Hartman v. Erie 1 BOCES Bd. of Educ., 204 A.D.2d 1037, 614 N.Y.S.2d 90).

 We agree with the Supreme Court that the petitioners failed to raise a triable issue of fact as to whether the respondents acted in bad faith in abolishing the civil service position of clinical psychologist and replacing those who were consequently terminated from employment with an increased number of school psychologists (see Matter of Davis v. Mills, 98 N.Y.2d 120, 124-125, 748 N.Y.S.2d 890, 778 N.E.2d 540;  Matter of Shearod v. Board of Coop. Educ. Servs. of Nassau County, 65 N.Y.2d 850, 493 N.Y.S.2d 306, 482 N.E.2d 1222, affg. 109 A.D.2d 743, 744, 486 N.Y.S.2d 62).   Although some of the duties of the abolished position of clinical psychologist overlap with those of a school psychologist, the positions are not the “same or similar,” as they have different certification requirements (see Matter of Davis v. Mills, supra;  Matter of Shields v. Dinga, 222 A.D.2d 816, 818, 634 N.Y.S.2d 790;  Matter of Shearod v. Board of Coop. Educ. Serv. of Nassau County, supra at 744, 486 N.Y.S.2d 62).

Moreover, while the position of clinical psychologist is governed by the rules of the Civil Service Law, the position of school psychologist is governed by the Education Law (see Matter of Smith v. Board of Educ. of E. Ramapo Cent. School Dist., 97 A.D.2d 795, 797, 468 N.Y.S.2d 539;  Matter of Crow v. Ambach, 96 A.D.2d 642, 465 N.Y.S.2d 71).   No triable issue of fact was raised by the petitioners that would have necessitated a hearing (see CPLR 410;  7804 [h];  cf. Matter of Hartman v. Erie 1 BOCES Bd. of Educ., supra at 1037, 614 N.Y.S.2d 90).