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In a procedural setback for the Giambra administration and the Erie County Legislature, a state appellate court Wednesday refused to delay lower-court hearings on efforts by County Comptroller Nancy A. Naples, Sheriff Patrick M. Gallivan and County Clerk David J. Swarts to restore jobs to their offices.

A five-judge panel of the Appellate Division of State Supreme Court in Rochester refused the Giambra administration's request to indefinitely delay those hearings until higher court proceedings are resolved in the budget and funding dispute.

On April 8, State Supreme Court Justice Joseph G. Makowski refused to quash lawsuits by the three elected officials.

Richard T. Sullivan, Swarts' attorney, said he remains optimistic that the hearing now scheduled to begin Monday in the county clerk case will result in the restoration of a number of posts in that office, one of the few county agencies that regularly turns a profit.

Sullivan said he was surprised that attorneys for County Executive Joel A. Giambra and the Legislature sought a higher court stay, because state court precedent over the last two decades has not permitted a halt to such purely fact-finding proceedings.

In its ruling, the appellate court stressed that under the state's civil procedure laws, such hearings cannot be halted because they do not involve challenges to enforcement of lower-court rulings.

Chris G. Tripp, Gallivan's attorney, said he is "ready to proceed" with the effort to restore jobs in the Sheriff's Department.

Naples' attorney, former state Attorney General Dennis C. Vacco, said he was "pleased" with the ruling "because we can now make our case for sufficient funding" of the comptroller's office.

Carole E. Heckman, a former federal magistrate judge who is the lead attorney for Giambra and the Legislature, stressed the "technical" nature of the ruling. She said that it "just means the hearings should go forward."

Court officials confirmed this schedule for the hearings: county clerk, Monday; sheriff, Wednesday; and county comptroller, May 2.


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