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MATTER JOSEPH L. BENEDETTO ET AL. v. COUNTY SUFFOLK (11/05/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY 1969.NY.43422 <http://www.versuslaw.com>; 305 N.Y.S.2d 664; 61 Misc. 2d 312 November 5, 1969 IN THE MATTER OF JOSEPH L. BENEDETTO ET AL., PETITIONERS,v.COUNTY OF SUFFOLK, RESPONDENT Meyer & Wexler (Peter D. Rubinton of counsel), for petitioners. George W. Percy, Jr., County Attorney (Stanley S. Corwin of counsel), for respondent. Thomas M. Stark, J. Author: Stark


Thomas M. Stark, J.

Author: Stark

 By this proceeding pursuant to article 78 of the CPLR petitioners, court reporters in the Suffolk County District Court, seek to compel respondent to pay to petitioners retroactive salary in grade 24 from January 1, 1967, to December 31, 1968.

The petition alleges that petitioners were duly appointed to their present positions and received the title of Court Reporter I pursuant to a December, 1966, resolution of the Board of Supervisors (Resolution Number 846-1966). This classification was in accordance with a position classification list for all Suffolk County courts promulgated by the Judicial Conference, dated October 6, 1968. The same title was accorded to the court reporters in the County, Surrogate's and Family Courts by the same resolution (which also accorded with the Judicial Conference's position classification list.) However, the Board of Supervisors' resolution adopting titles and classifications and fixing grades in the Suffolk County Salary Plan placed petitioners in salary grade 20, although it placed all persons holding the Court Reporter I title in the County, Surrogate's and Family Court in salary grade 24. Petitioners assert that the stated disparity in salary grade resulted in their receiving less compensation than persons similarly classified, performing similar duties, in violation of section 115 of the Civil Service Law.

The differential in salary grades was corrected in the spring of 1969, retroactive to January 1, 1969, so that petitioners are presently in the same salary grade, grade 24, as the other persons classified as Court Reporter I in the various Suffolk County courts. Respondent previously moved to dismiss the petition, which motion was denied by Mr. Justice Tasker.

The respondent county now answers and alleges that the proceeding was not timely commenced and that the petitioners are county employees, not State employees and are, therefore, not protected by section 115 of the Civil Service Law.

The unequal pay grades for Court Reporter I were maintained by the respondent county until on March 10, 1969, the County Executive approved Resolution No. 123-1969 which granted persons holding the Court Reporter I title in the District Court an increment to grade 24 on the Suffolk County Salary Plan retroactive to January 1, 1969. The wrong, therefore, was a continuing wrong until March 10, 1969. The order to show cause was granted on May 23, 1969, and served on May 26, 1969, all within the permissible period for the commencement of this proceeding. (CPLR 217; Matter of Matthews v. O'Dwyer, 194 Misc. 1056.)

The prime issue presented by this proceeding is whether the petitioners are employees of the State, paid by the municipality which they serve, or employees of Suffolk County. It is immaterial whether Suffolk County or the court district is their employer (if it is not the State of New York), since section 115 of the Civil Service Law does not apply to any municipality. (Matter of Ryan v. Adler, 51 Misc. 2d 816, affd. 28 A.D.2d 920, affd. 21 N.Y.2d 815.)

The "determinative factor" in ascertaining whether or not an employee is a State employee is whether any "State officer or body ever had the power or authority to appoint or discharge the petitioner". (Matter of Goodman v. Ralph, 294 N. Y. 169, 172.) The inquiry must thus be directed to determining who controls the petitioners, who appointed them and who regulates and supervises their employment. To ascertain answers to these inquiries, pertinent analysis must be made of the structure and organization of the unified court system of New York State as created by the Legislature.

To give substance to the Tweed Commission amendments to the State Constitution and the newly created unified court system, the Legislature enacted a series of acts each effecting certain judicial reforms, in 1962. Chapter 684 of the Laws of 1962 added section 212 of the Judiciary Law which grants additional powers and duties to the Judicial Conference and provides inter alia :

"The administrative board shall have the authority and responsibility for the administrative supervision of the unified court system * * * [to adopt] standards and policies relating to * * * "1. Personnel practices, title structures, job definition, classification, qualifications, appointments, promotions, transfers, leaves of absence, resignations and reinstatements, performance rating, sick leaves, vacations, time allowances, and removal of non-judicial personnel of the unified court system".

Section 214 of the Judiciary Law, also added by chapter 684 of the Laws of 1962, provides in part: "Each appellate division shall, with respect to the courts in its department, be vested with, (1) the administrative powers and duties necessary to effectuate the standards and policies established by the administrative board pursuant to section two hundred twelve of this chapter".

Section 212 of the Judiciary Law was amended by chapter 685 of the Laws of 1962 to require that "The standards and policies of the administrative board relating to the foregoing powers and duties shall be consistent with the civil service law".

Pursuant to the afore-quoted statutes, the Administrative Board of the Judicial Conference on October 1, 1964, adopted Time and Leave Rules (art. VI) for all of the employees of the unified court system and on November 1, 1964, adopted Career Service Rules (art. VII) for all non-elected and non-judicial employees of the unified court system.

The board provided that the Time and Leave Rules were not to be applied outside the City of New York until specifically extended by the Administrative Board or an Appellate Division. By separate informal order, the Board and the Appellate Division directed the courts operating in Suffolk County to continue to operate pursuant to the time and leave rules of the Suffolk County Civil Service Commission. The time and leave rules relating to employees of the unified court system in Suffolk County are, therefore, applied and administered pursuant to direction of ...


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