Opinion
February 16, 1982
Max Cohen for petitioner.
John W. Park, County Attorney, for respondents.
Petitioner, the District Attorney of the County of Ontario, brings this CPLR article 78 proceeding to compel the Board of Supervisors to pay him the same salary as the County Judge is paid. An earlier petition was brought for the same relief before Supreme Court Justice ANDREW V. SIRACUSE. In a lengthy opinion concerning the legal issues involved, Justice SIRACUSE dismissed the petition ( 111 Misc.2d 197). Since that time, the petitioner has been elected to a new term of office and the salary figure has changed. Except for these two elements, every other issue presented by this petition was present in the first.
CPLR 2217 provides for a transfer of a motion "to a judge who decided a prior motion in the action". In Matter of Panzer v Berman ( 53 Misc.2d 122), Justice LEVY held that successive article 78 proceedings were not the same action and could not be transferred. In my view, that decision should be limited to its facts. Where, as here, the successive proceedings are necessary only to preserve a continuing right, it would be incongruous for a second court, less than four months later, to arrive at a different result.
I find that the phrase "in the action" should be construed broadly to encompass successive proceedings closely related in time and with nearly identical issues. The motion should be transferred to Judge SIRACUSE.