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CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED.

The Third Department, affirming Supreme Court, determined petitioner was not a “necessary employee” under the Civil Service Law. Therefore her position with the respondent school district was not obligated to transfer her when her position was abolished:

Mandamus to compel, sought by petitioner, is “an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought” … . Civil Service Law § 70 (2) provides, in relevant part: “Upon the transfer of a function . . . from one department or agency of the state to another department or agency of the state, . . . provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred” … . This language imposes a mandatory duty … . Thus, the ultimate issue is whether petitioner has “established a right to the relief sought which is ‘so clear as not to admit of reasonable doubt or controversy'” … . An employee is eligible for a transfer pursuant to Civil Service Law § 70 (2) only if he or she is a “necessary . . . employee[]” — i.e., if the agency or the department to which his or her duties are being transferred does not have sufficient staff at the time of the transfer to perform the duties being transferred … . Matter of Thornton v Saugerties Cent. Sch. Dist., 2016 NY Slip Op 08139, 3rd Dept 12-1-16

EMPLOYMENT LAW (CIVIL SERVICE LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)/EDUCATION LAW (EMPLOYMENT LAW, CIVIL SERVICE LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)/CIVIL SERVICE LAW (EDUCATION-SCHOOL LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)

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