Summary
In Mackston v State of New York (126 A.D.2d 710, supra) the Second Department found that two cities located within 10 miles of each other in Westchester County did constitute a true unity of judicial interest and therefore ordered that salaries in the two be equalized.
Summary of this case from Burke v. CrossonOpinion
January 26, 1987
Appeal from the Supreme Court, Nassau County (Kelly, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the motion which was for partial summary judgment declaring the salary differential unconstitutional with respect to the plaintiff Thomas J. O'Toole and substituting therefor a provision granting that branch of the motion. As so modified, the order is affirmed insofar as appealed from, without costs or disbursements, Jack Mackston's claim is severed, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
The factual and legal issues have been discussed in greater detail in Kendall v. Evans ( 126 A.D.2d 703 [decided herewith]).
Special Term improperly denied the plaintiff O'Toole's motion for summary judgment declaring the unfavorable salary differentials between himself, as a Judge of the City Court of the City of New Rochelle, and the Judges of the City Court of the City of White Plains, violative of his constitutionally protected right to equal protection of the laws. The defendants have failed to demonstrate that a rational basis exists for the statutorily mandated disparate financial treatment of similarly situated City Court Judges, whereas the plaintiff O'Toole has established that the two cities, which are located within 10 miles of each other in Westchester County, constitute a "'true unity of * * * judicial interest * * * indistinguishable by separate geographic considerations'" (Weissman v. Evans, 56 N.Y.2d 458, 463 [quoting from the record in that case]).
Thus, the plaintiff O'Toole is entitled to the ancillary relief requested, i.e., salary and pension base adjustments (see, Weissman v. Evans, supra, at pp 466-468), and the basis for the computation thereof shall be the differential between the plaintiff O'Toole's salary and that of the Judges of the City Court of the City of Yonkers (see, CPLR 3017 [a]; Kendall v Evans, supra; Crane v. Axelrod, 86 A.D.2d 923, 924).
We conclude, however, that Special Term did properly deny the plaintiff Jack Mackston's application for summary judgment since, in light of the procedural posture of this case, it cannot be said that the census information submitted by defendants State of New York and Edward V. Regan, indicating "disparities in population, caseload, and cost of living" (Cass v. State of New York, 58 N.Y.2d 460, 464) between the cities of Long Beach and White Plains, of which this court may take judicial notice although submitted for the first time on appeal (see, Matter of Siwek v. Mahoney, 39 N.Y.2d 159, 163; Hunter v. New York, Ontario W.R.R. Co., 116 N.Y. 615; People v. Humphreys, 62 Misc.2d 203; Richardson, Evidence §§ 14, 50 [Prince 10th ed]), did not demonstrate that a rational basis exists for the salary differential between the plaintiff Mackston, a Judge of the City Court of the City of Long Beach, located in Nassau County, and the Judges of the City Court of the City of White Plains, located in Westchester County. Since triable issues of fact have been raised in the Mackston case, the ultimate determination should await a trial (see, Andre v. Pomeroy, 35 N.Y.2d 361, 364). Thompson, J.P., Bracken, Rubin and Spatt, JJ., concur.