
    In the Matter of John J. Waterman, Petitioner, v. Alan D. Miller, as Commissioner of Mental Hygiene, et al., Respondents.
    Supreme Court, Oneida County,
    November 15, 1971.
    
      Francis P. Valone for petitioner. Louis J. Lefkowitz, Attorney-General, for respondents.
   Francis R. Moran, J.

The petitioner seeks an order reinstating him as an employee of the Utica State Hospital, together with other attendant relief.

The facts are not in dispute. On November 30, 1970, John J. Waterman was appointed a probationary employee at the Utica State Hospital. This is a position in the competitive class under the Civil Service Law. He served continuously as a member of the safety force of the hospital until July 7, 1971, when his dismissal became effective. On or about February 18, 1971, it was recommended by the Deputy Director of the hospital that the petitioner be dismissed. He was however retained in the same position until his dismissal on July 7, 1971.

Under section 4.5 of the Rules and Regulations of the Department of Civil Service (4 NYCRR 4.5) the probationary term in this case is not less than 8 nor more than 26 weeks. The appointment becomes permanent upon completion of the minimum period of probation unless the probationary term is continued. If the probationary term is continued,' the petitioner must be given written notice of this fact and a different assignment. The logic behind the latter condition is apparently to avoid extending the probationary term in the original position the applicant was appointed to beyond 26 weeks.

Since the petitioner has served well over 26 weeks in the same position he was originally appointed to, he should be restored and reinstated to his position as a member of the safety force of the Utica State Hospital. He is also entitled to reimbursement for any moneys due him from the respondent as a result of his unlawful discharge, subject, of course, to any appropriate legal adjustments for earnings the petitioner may have had in the interim.  