Opinion
December 30, 1970
Appeal from a judgment of the Supreme Court at Special Term, entered November 18, 1969 in Kings County, in a proceeding under CPLR article 78, which annulled respondent's evaluation of petitioner as Court Clerk II and directed respondent to re-evaluate petitioner to the position of Court Clerk III, retroactively to July 1, 1966. This appeal has been transferred from the Appellate Division, Second Department. As a result of the "Classification Plan — Unified Court System — New York City", adopted by the Administrative Board of the Judicial Conference of the State of New York under date of July 1, 1966, petitioner was converted to the title of Court Clerk II, having been previously rated as a Clerk, Grade B. He claims he should have been reclassified as Court Clerk III, instead. In determining whether petitioner is entitled to relief, the underlying test is whether the classification sought by petitioner encompasses the same duties as previously performed within the title of his former classification ( Matter of Ainsberg v. McCoy, 26 N.Y.2d 56; Matter of Mandle v. Brown, 5 N.Y.2d 51, 65). The duties assigned to and performed by petitioner under his former classification are outlined in detail in paragraph "8" of the petition and are admitted in the answer (cf. Matter of Ainsberg v. McCoy, supra, p. 60), although there is a denial that they rise to Clerk III level. An item by item analysis and comparison of these in title services with the title specifications for the Court Clerk III position demonstrate their identity and the lack of a rational basis for a classification other than Court Clerk III. The fact that petitioner's superior may be evaluated as Clerk III does not overcome the admission nor does it supply a rational basis in the absence of an allegation or proof that the services performed differ from those of the classification. Judgment affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.