Opinion
May 6, 1971
Judgment, Supreme Court, New York County, entered November 2, 1970, unanimously reversed, on the law, without costs and without disbursements, and the petition dismissed. Neither the petition nor the supporting papers make clear what petitioner is seeking to do. In 1966 petitioner held a position in the Surrogate's Court under the title of Senior Stenographer. At that time the Judicial Conference evaluated her position and confirmed the title. She appealed to the Classification Appeals Board, claiming that her position should have been evaluated as Assistant Surrogate's Court Clerk. While the appeal was pending petitioner took and passed the appropriate examination and was certified as Assistant Surrogate's Court Clerk. At this point her appeal became moot. Respondent, however, sent her a notice that her appeal had been denied. It is obvious that there is no decision to be reviewed. The petition does state that petitioner is performing the duties of Court Clerk I or Court Clerk II and seeks to be reclassified as of July 1, 1966 (the date of the classification). Assuming this to be an application in the nature of mandamus rather than to review a determination of the respondent, petitioner would have to show a clear legal right to the position sought. This would be either by way of examination or possibly by the performance of in-title duties. This she has failed to do, as there is no clear showing of what duties she was performing in 1966; and in fact by her appeal she negated that such duties equated her position with Court Clerk I.
Concur — McGivern, J.P., Nunez, McNally, Steuer and Eager, JJ.