Opinion
January 26, 1971
Judgment, Supreme Court, New York County, entered July 15, 1970 in an article 78 proceeding dismissing a petition seeking a direction of payment to petitioner of additional compensation and arrears thereof, unanimously reversed, on the law, and the petition granted, without costs and without disbursements. Petitioner, who is not an attorney and who served as a clerk to a Supreme Court Justice in the County of Richmond, sought payment of the difference in salary paid to him from July 18, 1963 to February 1, 1965 and the greater salary paid to lawyers who were clerks to Supreme Court Justices during that period. The petition was dismissed by Special Term on the authority of Matter of Serra v. Procaccino ( 33 A.D.2d 210). However, on October 9, 1970, the Court of Appeals ( 27 N.Y.2d 162, 167) reversed the Serra case; held that the Justices of the Appellate Division in the First and Second Department were not "the appropriate appointing authority" which could withhold increased salaries from nonlawyer clerks to Justices of the Supreme Court; and directed that nonlawyer clerks be awarded the increases given to lawyer clerks to Justices of the Supreme Court. Petitioner herein falls squarely within the holding of the Court of Appeals in 27 N.Y.2d 162, and is therefore entitled to the relief prayed for in his petition.
Concur — McGivern, J.P., Markewich, Nunez, Kupferman and Macken, JJ.