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DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE FOR PRESS RELEASE ABOUT TATOO-RELATED INFECTIONS, PLAINTIFF UNABLE TO DEMONSTRATE MALICE.

The Fourth Department determined the defendant county Department of Health was entitled to summary judgment on plaintiff’s defamation cause of action. The Department of Health had linked eight cases of infection to a particular tatoo artist. The tatoo artist told the Department he worked for plaintiff Tatoos by Design, Inc., doing business as Hardcore Tatoo. The Department issued a press release warning of the infections and noted that the tatoo artist in question reported to them he had worked for Hardcore. The Fourth Department held the Department of Health had a qualified privilege to issue the health warning and plaintiff was unable to demonstrate the press release was motivated solely by malice:

 

Generally, a statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned’ ” … . Defendants, as public health officials, had a public duty to inform the public about the hazards of potential exposure to the subject tattoo artist’s work (see Public Health Law § 2100…), and it was within the scope of that duty that the press release containing the allegedly defamatory statements was issued … .

Once defendants established that the statements in the press release were protected by a qualified privilege, the burden shifted to plaintiffs to raise a triable issue of fact “whether the statements were motivated solely by malice” … , meaning “spite or a knowing or reckless disregard of a statement’s falsity”… . Tattoos By Design, Inc. v Kowalski, 2016 NY Slip Op 01091, 4th Dept 2-11-16

 

DEFAMATION (QUALIFIED PRIVILEGE FOR PRESS RELEASE ISSUED BY DEPARTMENT OF HEALTH)/PRIVILEGE (DEFAMATION, DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)/PUBLIC HEALTH LAW (DEFAMATION, DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)/MUNICIPAL LAW (DEFAMATION, COUNTY DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)

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FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED WAS NOT IN FRONT OF DEFENDANT’S PROPERTY. STANDING ALONE, DOES NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, found that a property owner, West River, which had a statutory duty to maintain an abutting sidewalk, was not entitled to summary judgment based solely on the fact that the defect in the sidewalk over which plaintiff tripped was not in front West River’s property. The expansion joint over which plaintiff tripped was in front of a neighboring property (the Mercado property). However, a nearby portion of the sidewalk which had subsided was in front of West River’s property. Therefore, to be entitled to summary judgment, West River was required to demonstrate it did not breach its duty to maintain the sidewalk, or that any such breach was not the proximate cause of plaintiff’s fall.  Simply demonstrating the expansion joint over which plaintiff tripped was not in front of West River’s property was not enough:

 

Plaintiff tripped on an expansion joint that abutted the Mercados’ property. That does not end the inquiry, nor does the fact that the defect upon which plaintiff tripped was in front of the Mercado property necessarily absolve West River of liability. Although West River did not have a duty to remedy any defects in front of the Mercado property, section 7-210 (a) [of the Administrative Code of the City of New York] imposed a duty on West River to maintain the sidewalk abutting its premises in a reasonably safe condition. Moreover, the plain language of section 7-210 (b) provides that West River may be held liable for injuries where its failure to maintain its sidewalk is a proximate cause of that injury. Here, most of the sunken sidewalk flag that plaintiff traversed abutted West River’s property, and plaintiff claims that West River’s sidewalk flag had sunk lower than the expansion joint upon which plaintiff allegedly tripped. Thus, West River failed to meet its burden of demonstrating entitlement to judgment as a matter of law, leaving factual questions as to whether West River breached its duty to maintain the sidewalk flag abutting its property and, if so, whether that breach was a proximate cause of plaintiff’s injuries. Under the circumstances of this case, summary judgment should have been denied. Sangaray v West Riv. Assoc., LLC, 2016 NY Slip Op 01002, CtApp 2-11-16

 

NEGLIGENCE (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)/SLIP AND FALL (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)/SIDEWALKS (FACT THAT SIDEWALK DEFECT OVER WHICH PLAINTIFF TRIPPED NOT IN FRONT OF DEFENDANT’S PROPERTY DOES NOT, STANDING ALONE, WARRANT SUMMARY JUDGMENT TO DEFENDANT)

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BASED ON THE UNAMBIGUOUS LANGUAGE OF THE POLICY, THE TERM “OCCURRENCE” REFERRED TO EACH TIME A MEMBER OF THE CLASS WAS INJURED, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE; THEREFORE THE DEDUCTIBLE WAS TRIGGERED SEPARATELY FOR EACH INJURED CLASS MEMBER.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the policy-term “occurrence,” for purposes of applying the deductible for each “occurrence,” meant each time a member of the class was injured, and not the single injury to the class as a whole. The class action was brought by an arrestee who was illegally strip-searched at the county jail. 800 others similarly searched made up the class. The insurance policy taken out by the county included a deductible of $10,000 for each “occurrence.” The county argued that the injury to the class as a whole was a single occurrence and triggered only one $10,000 deductible. The court held that, based on the plain language of the policy, each strip-search constituted a separate occurrence. Therefore the $10,000 deductible applied to each member of the class (making the county liable for all the damage payments):

 

The plain language of the insurance policy indicates that the improper strip searches of the arrestees over a four-year period constitute separate occurrences under the policies at issue. Contrary to the County’s argument, the definition of “occurrence” in the policies is not ambiguous. The policy defines ‘occurrence’ as “an event, including continuous or repeated exposure to substantially the same general harmful conditions, which results in . . . ‘personal injury’ . . . by any person or organization and arising out of the insured’s law enforcement duties” (emphasis added). Thus, the language of the insurance policies makes clear that it covers personal injuries to an individual person as a result of a harmful condition. The definition does not permit the grouping of multiple individuals who were harmed by the same condition, unless that group is an organization, which is clearly not the case here. The harm each experienced was as an individual, and each of the strip searches constitutes a single occurrence … . Selective Ins. Co. of Am. v County of Rensselaer, 2016 NY Slip Op 01001, CtApp 2-11-16

 

INSURANCE LAW (CLASS ACTION, DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)/CLASS ACTION (INSURANCE POLICY DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)/MUNICIPAL LAW (CLASS ACTION, COUNTY’S INSURANCE POLICY DEDUCTIBLE APPLIED TO EACH INJURED MEMBER OF THE CLASS, NOT TO A SINGLE INJURY TO THE CLASS AS A WHOLE)

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QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY.

The Second Department, reversing Supreme Court, determined decedent’s representative had raised a question of fact whether the driver of a city dump truck was negligent. Decedent was a passenger in a car which struck the back of the dump struck which was either stopped or coming to a stop in the left lane of the highway. Although the driver of the truck testified a tire had just blown, causing the truck to veer to the left, the truck was still moving when struck, and the emergency flashing lights were on, the sole eyewitness testified the truck was parked and its lights were not on:

 

The City made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that its truck was lawfully stopped on the highway due to an emergency (see Vehicle and Traffic Law § 1202[a][1][j]) when it was struck in the rear by the Cadena vehicle. However, in opposition, viewing the evidence in the light most favorable to the plaintiff, affording him the benefit of every favorable inference …, and applying the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76, 80) to hold him to a lesser standard of proof, the plaintiff raised a triable issue of fact as to whether the truck driver exercised reasonable care in warning other drivers of the hazard posed by his disabled vehicle. Generally, when one causes a public road to become obstructed, there is a duty to “exercise[ ] the care that a reasonably prudent person should have under all the circumstances” … . The exercise of reasonable care under the circumstances may include warning other motorists of the hazards posed by the obstruction … . Typically, whether reasonable care was exercised is a question of fact … .

The City’s truck driver testified at a deposition that the truck’s headlights were on, that after the blowout of the tire he activated the truck’s emergency lights, and that the accident occurred within seconds of veering into the left lane while he was still moving 10 to 15 miles per hour. However, the sole eyewitness to the accident, Weiguo Qu, indicated that he saw the truck “parked” in the left lane of a highway with its lights off and no flashing lights. In light of this conflicting evidence, triable issues of fact exist regarding, among other things, whether the City’s truck driver failed to exercise reasonable care to warn other motorists of the obstruction and, if so, whether such failure was a proximate cause of the accident… . Pinilla v City of New York, 2016 NY Slip Op 00953, 2nd Dept 2-10-16

EMINENT DOMAIN (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)/LANDLORD-TENANT (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)/TRADE FIXTURES (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)

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SECOND SUMMARY JUDGMENT MOTION PROPERLY ENTERTAINED; ABSENCE OF SPECIAL RELATIONSHIP REQUIRED DISMISSAL OF NEGLIGENCE ACTION AGAINST POLICE.

In finding the defendant-city’s motion for summary judgment should have been granted, the Second Department noted that, although successive summary judgment motions are disfavored, the defendant-city’s second motion was properly entertained. The complaint alleged negligence on the part of the police stemming from an attack on her by her husband and the shooting of her husband by the police. Prior to the attack and the shooting, plaintiff had gone to the police station seeking protection but was sent home. The negligence action against the city/police was dismissed on governmental immunity grounds because no “special relationship” between plaintiff and the police had been demonstrated:

 

That branch of the defendants’ cross motion which was for summary judgment should have been granted. Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts … .

Generally, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection” … . When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person … . A special duty is “a duty to exercise reasonable care toward the plaintiff,” and “is born of a special relationship between the plaintiff and the governmental entity” … . The elements required to establish a special relationship are: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the police did not assume an affirmative duty to act on Dawes’ behalf … . Graham v City of New York, 2016 NY Slip Op 00932, 2nd Dept 2-10-16

 

NEGLIGENCE (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/GOVERNMENTAL IMMUNITY (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/MUNICIPAL LAW (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/POLICE (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/CIVIL PROCEDURE (SECOND SUMMARY JUDGMENT MOTION PROPERLY CONSIDERED)/SUMMARY JUDGMENT (SECOND MOTION FOR SUMMARY JUDGMENT PROPERLY CONSIDERED)/CIVIL PROCEDURE (SECOND SUMMARY JUDGMENT MOTION PROPERLY CONSIDERED)

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APPLICATION FOR LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS; PURPOSE OF NOTICE OF CLAIM REQUIREMENT EXPLAINED.

The First Department, reversing Supreme Court, granted petitioner’s application to file a late notice of claim alleging injury in a slip and fall accident caused by a badly broken sidewalk in front of property owned by the New York City Housing Authority (NYCHA). Petitioner’s attorney had assumed the city, not the NYCHA, owned the abutting property. After noting that an error in identifying the correct public corporation was not a reasonable excuse, and further noting the NYCHA did not have notice of the accident by other means, the First Department explained the purpose of the notice requirement and why late notice was appropriate in this case:

 

After petitioner’s counsel realized that respondent NYCHA, not the City of New York, owned the property abutting the badly broken sidewalk where petitioner’s accident occurred, petitioner sought an extension of time to file a notice of claim under General Municipal Law § 50-e(5). That statute confers upon the court “the discretion to determine whether to grant or deny leave to serve a late notice of claim within certain parameters” … . The factors to be considered by the court include: whether the failure to identify the proper party was an “excusable error,” whether the public corporation received “actual knowledge of the essential facts constituting the claim” within 90 days of the accident or “a reasonable time thereafter,” and whether the delay “substantially prejudiced” the public corporation’s ability to defend the claim on the merits (General Municipal Law § 50-e[5]). The notice of claim requirement “is not intended to operate as a device to frustrate the rights of individuals with legitimate claims,” but to protect the public corporation from “unfounded claims” and ensure that it has an adequate opportunity “to explore the merits of the claim while information is still readily available” … .

While the error of petitioner’s counsel concerning the identity of the responsible public corporation does not provide a reasonable excuse for the delay in giving notice … , “the absence of a reasonable excuse is not, standing alone, fatal to the application” … . Although NYCHA did not receive actual notice of the accident until the petition was served, it did not contest petitioner’s assertion that the condition of the badly broken sidewalk remains unchanged since the time of the accident and that there were no witnesses to the accident, so that NYCHA will not be substantially prejudiced by the eight-month delay in providing notice (… General Municipal Law § 50-e[5]). NYCHA’s conclusory claim that the “passage of time may affect the availability or memories of potential witnesses is insufficient to establish prejudice” … . In light of the policies underlying General Municipal Law § 50-e(5), which is to be liberally construed to achieve its remedial purposes … . Matter of Richardson v New York City Hous. Auth., 2016 NY Slip Op 00909, 1st Dept 2-9-16

 

NEGLIGENCE (LATE NOTICE OF CLAIM ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)/MUNICIPAL LAW (NOTICE OF CLAIM, LATE NOTICE ALLOWE DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)/NOTICE OF CLAIM (LATE NOTICE ALLOWED DESPITE ABSENCE OF REASONABLE EXCUSE AND NOTICE BY OTHER MEANS)

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POLICE DISCIPLINE PROPERLY CONTROLLED BY COLLECTIVE BARGAINING AGREEMENT, DESPITE STATUTORY PROVISION PLACING DISCIPLINE IN THE HANDS OF THE COMMISSIONER.

The Third Department determined that a provision of the Second Class Cities Law specifically allowed the statute to be superseded by subsequent statutes. The Second Class City Law placed police discipline in the hands of the commissioner.  However a subsequently enacted provision of the Civil Services Law (called the Taylor Law) required police discipline to be the subject of a collective bargaining agreement, absent conflicting legislation. The Taylor Law prevailed because of the “planned obsolescence” of the Second Class City Law statute:

 

… [T]he Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining … . “[Courts] have long recognized the ‘strong and sweeping policy of the State to support collective bargaining under the Taylor Law'” … . Indeed, “the presumption is that all terms and conditions of employment are subject to mandatory bargaining” … . However, because of the “competing policy . . . favoring strong disciplinary authority for those in charge of police forces[, w]here legislation specifically commits police discipline to the discretion of local officials,” the policy favoring collective bargaining will give way to the legislatively established disciplinary procedures … . * * *

… [T]he clear and unambiguous language of Second Class Cities Law § 4 provides the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter … . Accordingly, we conclude that Second Class Cities Law article 9 does not require “that the policy favoring collective bargaining should give way” … . Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 2016 NY Slip Op 00729, 3rd Dept 2-4-16

 

MUNICIPAL LAW (POLICE DISCIPLINE CONTROLLED BY COLLECTIVE BARGAINING, NOT CONFLICTING STATUTE)/UNIONS (POLICE DISCIPLINE CONTROLLED BY COLLECTIVE BARGAINING, NOT CONFLICTING STATUTE)/STATUTES (PLANNED OBSOLESCENCE OF STATUTE ALLOWED IT TO BE SUPERSEDED BY SUBSEQUENT STATUTE)

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FAILURE TO ADDRESS THE CREATION-OF-THE-DEFECT THEORY OF RECOVERY REQUIRED DENIAL OF DEFENDANT-VILLAGE’S SUMMARY JUDGMENT MOTION.

The Second Department, in this slip and fall case, determined that the village’s failure to address plaintiff’s allegation that the village created the dangerous condition (a one-inch higher portion of a sidewalk) required the denial of the village’s motion for summary judgment. [Another example of a defense summary judgment motion which did not affirmatively address every possible theory of recovery.] The court explained the relevant law:

 

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . The bill of particulars alleged that the Village affirmatively created the dangerous condition which caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Therefore, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. McManus v Klein, 2016 NY Slip Op 00704, 2nd Dept 2-3-16

 

NEGLIGENCE (LIABILITY ALLEGED UNDER COMMON-LAW NEGLIGENCE  AND RES IPSA LOQUITUR, DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT OF THOSE THEORIES REQUIRED DENIAL OF SUMMARY JUDGMENT)/RES IPSA LOQUITUR (DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT RES IPSA LOQUITUR THEORY OF RECOVERY RREQUIRED DENIAL OF SUMMARY JUDGMENT)

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COUNTY CHARTER CONTROLLED WHERE THERE WAS A CONFLICT BETWEEN THE CHARTER AND AN ADMINISTRATIVE CODE PROVISION RE: ARBITRATION OF POLICE DISCIPLINARY MATTERS.

The Second Department determined the county did not have the authority to enter into an agreement with the police union (PBA) to arbitrate certain police disciplinary matters. The county charter vested the power to discipline police in the police commissioner. The charter provision was deemed controlling. Therefore the administrative code provision allowing the binding arbitration of disciplinary matters was properly repealed by a local law subsequently enacted by the county:

… [S]ince the County Charter vested the power to discipline members of the Nassau County Police Department exclusively with the Commissioner of Police, the County Legislature’s attempt to divest the Commissioner of a portion of that disciplinary authority by amending the County Administrative Code to allow for binding arbitration of certain disciplinary matters created a conflict between the code and the charter, and, in the face of such a conflict, the charter controlled … . Therefore, the court properly concluded that the County Legislature’s enactment of section 8-13.0(e) of the Nassau County Administrative Code was invalid, and that the subsequent repeal of section 8-13.0(e) of the County Administrative Code by Local Law No. 9-2012 of the County of Nassau was proper and should not be enjoined. Moreover, as the County Legislature expressly committed disciplinary authority over the Nassau County Police Department to the Commissioner of Police, collective bargaining over disciplinary matters was prohibited … . Carver v County of Nassau, 2016 NY Slip Op 00466, 2nd Dept 1-27-16

MUNICIPAL LAW (COUNTY CHARTER TRUMPS ADMINISTRATIVE CODE)/COUNTIES (COUNTY CHARTER TRUMPS ADMINISTRATIVE CODE)/CHARTERS (COUNTY CHARTER TRUMPS ADMINISTRATIVE CODE)/UNIONS (COUNTY CHARTER TRUMPS POLICE COLLECTIVE BARGAINING AGREEMENT)/PUBLIC EMPLOYEES (COUNTY CHARTER TRUMPS COLLECTIVE BARGAINING AGREEMENT)/COLLECTIVE BARGAINING AGREEMENTS (COUNTY CHARTER TRUMPS POLICE COLLECTIVE BARGAINING AGREEMENT)/POLICE (COUNTY CHARTER TRUMPS COLLECTIVE BARGAINING AGREEMENT)

UNDER THE CITY CHARTER, THE MAYOR DID NOT HAVE THE POWER TO ABOLISH A CIVIL SERVICE POSITION; ONLY THE BODY EMPOWERED TO CREATE THE POSITION CAN ABOLISH IT.

The Second Department, affirming Supreme Court, determined the city charter did not give the mayor the authority to abolish a civil service position. Only the Board of Estimate and Apportionment had the power to create the position at issue, therefore only the Board could abolish the position:

 

The questions that may be raised in a CPLR article 78 proceeding include “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803[3]…). Here, the Supreme Court correctly concluded that the Mayor did not have the authority to unilaterally abolish the position of part-time code enforcement officer. The City Charter grants the Middletown Board of Estimate and Apportionment the power to create civil service positions in Middletown, by providing that it “shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees” (City Charter § 64). Although the City Charter authorizes the Mayor, with certain limitations, to suspend [*2]an employee for cause (see City Charter § 54), there is nothing in the City Charter conferring upon the Mayor the authority to unilaterally abolish civil service employment positions. “The general rule, when not qualified by positive law, is that the power which creates an office may abolish it in its discretion and this rule applies to municipal offices created by the act of some municipal body” … . Having been granted the power to create civil service employment positions in Middletown, it is the Board of Estimate and Apportionment, and not the Mayor, that is vested with the power to abolish them … . Matter of Moser v Tawil, 2016 NY Slip Op 00501, 2nd Dept 1-27-16

 

MUNICIPAL LAW (UNDER CITY CHARTER MAYOR DID NOT HAVE POWER TO ABOLISH A CIVIL SERVICE POSITION)/CHARTERS (CITY CHARTER, MAYOR CAN NOT EXCEED POWERS AUTHORIZED IN CHARTER)/CIVIL SERVICE (ONLY BODY WHICH HAS THE POWER TO CREATE A CIVIL SERVICE POSITION CAN ABOLISH IT)

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