Opinion
January 20, 1971
Appeal from a judgment of the Supreme Court at Special Term, entered January 26, 1970 in Bronx County, in a proceeding under CPLR article 78, which annulled a determination of the State Administrator of the Administrative Board of the Judicial Conference classifying respondent as Court Clerk I, and directing that he be reclassified as Law Assistant II. This appeal was transferred here, pursuant to CPLR 5711 by order of the Appellate Division, First Department, entered November 10, 1970. Petitioner is employed as a Court Clerk II in the Supreme Court, Bronx County. Prior to September 1, 1962, he was employed as an Assistant Special Deputy Clerk in the former Bronx County Court. After the 1962 court reorganization (N.Y. Const., art. VI, § 35), petitioner was transferred to the Supreme Court, Bronx County. In 1966 the Administrative Board issued its classification plan. All titles of Assistant Special Deputy Clerk, including petitioner's title were reclassified into the title of Court Clerk I. On July 1, 1966 he was appointed to Court Clerk II from a list based upon a competitive examination. On July 1, 1966 the Administrative Board notified the petitioner of the conversion of his then title of Assistant Special Deputy Clerk to Court Clerk I, and indicating a position evaluation of Law Assistant II. In his petition, he alleges that, prior to September 1, 1962, the title of Assistant Special Deputy Clerk in the Bronx County Court was in the unlimited salary category without limitation of duty by statute or rule, and the duties thereof were as might be assigned by the Chief County Judge, and that he had been assigned the duties and served in the capacity of a law assistant. Appellant's answer denies these allegations, although it appears in the record to be undisputed that, since July 1, 1960, petitioner has been performing the duties of Law Assistant II. Petitioner, therefore, contends that his title should have been converted to Law Assistant II rather than Court Clerk I. Appellant contends that, although petitioner has been performing the duties of a Law Assistant II, which is reflected in his position evaluation, these duties were not consistent with his title, and such assignment constituted out-of-title work and may not form the basis for conversion of petitioner's title to Law Assistant II. Thus, while petitioner is entitled to have his title converted to a title equivalent to the duties he has been performing, such right is limited only to duties validly performed within his title, and does not extend to out-of-title duties imposed upon or assumed by petitioner. There is no proof in this record that the duties performed by petitioner as reflected by his position evaluation were, in fact, performed in title. There is no proof that the duties to be performed by an Assistant Special Deputy Clerk included duties of a Law Assistant. Petitioner was never officially appointed as a Law Assistant and the duties of a Court Clerk and a Law Assistant do not overlap and are patently dissimilar. The fact that he was assigned such duties did not create a right to such a position or a right to have his title converted to such a position. ( Matter of Goldhirsch v. Krone, 18 N.Y.2d 178; Matter of Mandle v. Brown, 4 A.D.2d 283, affd. 5 N.Y.2d 51.) "Obviously, reclassification may not be employed as a device to sanction the performance of out-of-title duties and thereby avoid the requirement of a competitive examination for promotion." ( Matter of Niebling v. Wagner, 12 N.Y.2d 314, 319.) Essentially, petitioner seeks a job classification; namely, Law Assistant II; the duties of which he has been performing to which he has never been appointed. The power to make such appointment is vested in the Appellate Division upon approval by the Administrative Board. (See 22 NYCRR 25.9 [b].) Judgment reversed, on the law, and petition dismissed, without costs. Reynolds, J.P., Staley, Jr., and Sweeney, JJ., concur; Greenblott and Cooke, JJ., dissent, and vote to remit to Special Term for further proceedings, in the following memorandum: We dissent and hold that there should be a hearing at Special Term. While the performance of duties out-of-title is not to be used as a basis for reclassification ( Matter of Ainsberg v. McCoy, 26 N.Y.2d 56, 59), a reclassification which conforms the civil service structure to the realities which obtained in the agency prior to reclassification is valid ( Matter of Mandle v. Brown, 5 N.Y.2d 51, 64). In proceedings of this nature, the civil service definition of an employee's duties is determinative, such a rule being inapplicable to the reclassification of employees in unlimited salary grades, the very purpose of which was to recognize and reward them for work actually being performed ( Matter of Mandle v. Brown, supra, p. 62). Paragraph 5 of the petition alleges that, prior to September 1, 1962, the title of Assistant Special Deputy Clerk in the Bronx County Court was "in the unlimited salary category, without limitation of duty by statute or rule, and the duties thereof were as might be assigned by the Chief County Judge". This is denied in the answer. Neither party has included in the record the job description of Assistant Special Deputy Clerk prior to reorganization nor proof as to whether or not the duties were without limitation except as assigned by the Chief County Judge, as alleged. The record also lacks a definitive showing as to whether the position had an unlimited salary range. Insofar as the courts have not been provided with the minimum basis required to permit a review or comparison of the duties of petitioner, as covered by his job description, prior to and after court reorganization, as well as determination of whether or not petitioner was in an unlimited salary grade, a hearing is required (cf. Matter of Ainsberg v. McCoy, supra, p. 61). The proceedings should be remitted to Special Term for further proceedings.