Opinion
May 13, 1971
Appeal from a judgment of the Supreme Court at Special Term, entered July 23, 1970 in New York County, which dismissed petitioners' application in a proceeding under CPLR article 78 which sought the retroactive equalization of the salaries of the petitioners employed as probation officers of the Supreme Court, Bronx County, with those of the probation officers employed by the Supreme Court, New York County. Before September 1, 1962 petitioners were employed in the County Court, Bronx County, as probation officers at a salary determined by that court. The Court of General Sessions, New York County, also employed probation officers before that date at a salary fixed by it which was somewhat higher than that paid by the County Court, Bronx County. Effective September 1, 1962 the County Court, Bronx County, and the Court of General Sessions, New York County, were abolished, and their functions and powers merged with the Supreme Court. (Code Crim. Pro., § 50.) For nonjudicial personnel it was provided that officers and employees of the abolished courts "shall, to the extent practicable, be transferred to courts which exercise the jurisdiction formerly exercised by the courts in which they were employed, and appointed to positions in such courts where their skills, experience and training can be fully utilized. Transfers and appointments under this section shall comply with the provisions of the civil service law. The officer or employee so transferred or appointed shall be continued in his new position without diminution in salary and with the same status and rights." (Judiciary Law, § 223.) On the effective date the probation officers employed by the former County Court, Bronx County, and the former Court of General Sessions of New York County were transferred to the Supreme Court in their respective counties without diminution or increase in salaries, thus continuing the differential in salaries paid probation officers in these counties. This differential in salaries continued until July 18, 1964 when the salaries were equalized. Petitioners allege that section 115 Civ. Serv. of the Civil Service Law provides for "equal pay for equal work"; that, by reason of the differential in salaries paid from September 1, 1962 to July 18, 1964, they did not receive equal pay for equal work and they are, therefore, entitled to additional remuneration; that notice of claim, therefore, was filed with the Comptroller of the City of New York in the month of February, 1970, and he has refused to pay them such additional remuneration; and that such failure is illegal, improper, discriminatory and to their damage, prejudice and detriment. Respondents allege that the petitions fail to set forth facts sufficient to state a valid cause of action. Special Term dismissed the petition on the ground that section 115 Civ. Serv. of the Civil Service Law was merely a statement of policy and did not mandate the additional remuneration sought by petitioners. This determination is supported by the decision in Matter of Goldberg v. Beame ( 22 A.D.2d 520, revd. on other grounds 18 N.Y.2d 513). In our opinion there is also nothing in section 115 which requires the salaries of employees of the Supreme Court to be equal in all counties of the State. Geographic distinction is permissible providing all employees performing the same work within the same county receive equal pay. ( Matter of Billig v. Procaccino, N.Y.L.J., May 27, 1969, p. 16, col. 4, affd. 34 A.D.2d 734. ) In addition, the petition should be dismissed on the basis of laches. Petitioners' demand for increased salaries for the period from September 1, 1962 to July 18, 1964 was not filed until February, 1970, and the proceeding was not commenced until May 4, 1970. Since petitioners did not make a reasonably prompt demand, and there is no excuse for their delay, they should be denied relief on the basis of laches. This proceeding, commenced about seven years after the time to make an initial protest accrued, is not timely brought. ( Austin v. Board of Higher Educ. of City of New York, 5 N.Y.2d 430; Matter of Tilt v. Krone, 31 A.D.2d 561.) Judgment affirmed, without costs. Staley, Jr., J.P., Greenblott, Cooke, Sweeney and Simons, JJ., concur.