Opinion
March 16, 1971
Appeal from a judgment of the Supreme Court at Special Term, entered September 30, 1970 in New York County, which directed respondent, State Administrator of the Administrative Board of the Judicial Conference of the State of New York, to remove petitioners from the position of Senior Clerk in the Surrogate's Court, New York County, and to certify persons on the existing valid competitive list for Senior Clerk in the Surrogate's Court, New York County, to fill the resulting vacancies. This appeal was transferred here, pursuant to CPLR 5711, by order of the Appellate Division, First Department. Petitioners have each been employed by the Surrogate's Court of New York County for many years. On November 21, 1964 petitioners Repole and Ingber were appointed provisionally to the title of Senior Clerk, and petitioner McNamara was appointed provisionally to the title of Senior Typist. As a result of the reclassification procedures of the Administrative Board of the Judicial Conference, they were all reclassified on July 1, 1966 to the provisional title of Senior Clerk; Repole and Ingber were reclassified to the permanent title of Clerk; and McNamara to the permanent title of Typist. Petitioners contend that, since they were performing the "in-title" duties of Senior Clerk at the time they were reclassified, they are entitled to be reclassified to such converted titles and should remain incumbents of the positions, the duties of which they have been performing. Petitioners only had provisional status in their Senior Clerk positions prior to reclassification, and such provisional status continued after reclassification. On July 2, 1968, as a result of a competitive examination, a promotional eligible list was established for the title of Senior Clerk in the Judicial Conference, Surrogate's Court, New York County. The intervenors, herein, are on such promotional list, and are eligible for promotion to the position of Senior Clerk. The contention of petitioners that their "in-title" work entitles them to permanent status in the position of Senior Clerk is erroneous, since a provisional appoinment cannot ripen into a permanent appointment merely because the appointee performs the functions of the position to which he was provisionally appointed. Reclassification may not be used as a vehicle or method to promote civil service employees without examination. (N.Y. Const., art. V, § 6.) Judgment affirmed, without costs. Staley, Jr., J.P., Greenblott, Cooke, Sweeney and Simons, JJ., concur.