N.Y. Civ. Serv. Law § 61(2). But while the second clause of this provision may cast doubt on the lawfulness of plaintiffs' long-term assignments as "acting" supervisors, see generally Rausch v. Pellegrini, 655 N.Y.S.2d 127 (Sup.Ct. App. Div.3d Dept. 1997), nothing in the statute creates a right to promotion. On the contrary, the statute, on its face, simply prohibits certain practices in the appointment process, and has been interpreted as such.

Following joinder of issue, Supreme Court dismissed the petition and this appeal by petitioners ensued. Preliminarily, we note that Civil Service Law § 61 (2) prohibits state agencies from assigning out-of-title work to state employees on a nonemergency basis ( see Matter of Rausch v Pellegrini, 237 AD2d 771, 772). In determining if this prohibition has been violated, courts have looked at the similarities between the duties assigned and those customarily performed by the employee, the extent to which the employee exercised the full range of duties of the higher level position, and whether the duties actually performed could be characterized as a reasonable extension of the employee's in-title duties ( see Matter of Sprague v Governor's Off. of Empl. Relations, 13 AD3d 849, 850-851; Matter of Woodward v Governor's Off. of Empl. Relations, 279 AD2d 725, 726; Matter of Wojtylak v Governor's Off of Empl. Relations, 161 AD2d 1097, 1099).

Specifically, petitioner Francis Steinbach claims that he has been performing FFA II duties at Washington Correctional Facility in Washington County since September 2, 1992; he filed an out-of-title grievance on July 1, 1998. Petitioner Jimmie Irizarry claims that he has been performing FFA II duties at Southport Correctional Facility in Chemung County since October 1, 1990; he filed an out-of-title grievance on June 10, 1998. Petitioner Mark Walker claims that he has been performing FFA II duties at Great Meadow Correctional Facility in Washington County since June 1, 1995; he filed an out-of-title grievance on May 19, 1998. In Matter of Rausch v. Pellegrini ( 237 A.D.2d 771), this Court had an opportunity to review nearly identical claims of an FFA I employed at Greene Correctional Facility in Greene County and determined that the extension of that petitioner's duties under the Quick Chill program following the departure of the FFA II position constituted out-of-title work. Understandably, petitioners claim that Rausch is controlling in this proceeding and mandates a finding that the administrative determinations denying their grievances were similarly arbitrary and capricious. Respondents, on the other hand, contend that Rausch is not dispositive because it was "based on a different and more limited record" and "did not decide the identical issue presented in this proceeding". We must agree with petitioners.

We affirm. Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law § 61 (2) (see,Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME v. Angello, 277 A.D.2d 576, 578, 715 N.Y.S.2d 537, 539; Matter of Rausch v. Pellegrini, 237 A.D.2d 771, 772) and, insofar as is relevant to this appeal, article 17 of the 1995-1999 contract between the State and PEF. It is important to note, however, that not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work (see, Matter of Civil Serv. Empls. Assn., Local 10000, AFSCME v. Angello, supra, at 539;Matter of Gorelick v. Governor's Off. of Empl. Relations, 227 A.D.2d 858, 859). Civil Service Law § 61 (2) provides, in relevant part, that "[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance

An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time, unrelated to any temporary emergency requirement (see, O'Reilly v. Grumet, 308 N.Y. 351, 355). Moreover, out-of-title work under the Civil Service Law has been established based upon a significant increase in supervisory responsibility (see, Matter of Rausch v. Pellegrini, 237 A.D.2d 771; Matter of Kuppinger v. Governor's Off. of Empl. Relations, 203 A.D.2d 664, 665), and where the employer engages in a regular practice of requiring officers to serve in the out-of-title positions of officer in charge whenever a Sergeant was absent, under nonemergency circumstances (see, Matter of Policemen's Benevolent Assn. of Vil. of Spring Val. v. Goldin, 266 A.D.2d 294; Matter of Gates Keystone Club v. Roche, 106 A.D.2d 877). Insofar as a violation of Civil Service Law § 61 (2) is concerned, we perceive no controlling distinction between an actual assignment to out-of-title work and a de facto assignment such as occurred here. Obviously, since May 1997, in the absence of the Chief, either the force is unsupervised or supervisory decisions must be made by one of the police officers who has not been trained and is not compensated as a supervisor. We conclude that this is a violation of the mandates of the statute.

Petitioner now appeals. Out-of-title work, other than on an emergency basis, is prohibited by Civil Service Law § 61 (2) (see, Matter of Rausch v. Pellegrini, 237 A.D.2d 771, 772). However, performance of duties by a grievant which are substantially similar to those set forth in that person's job description does not constitute out-of-title work (see, Matter of Gorelick v. Governor's Off. of Empl. Relations, 227 A.D.2d 858), nor does some overlap of the duties of a grade 9 employee and the higher grade 12 employee (see, Matter of Bailey v. Governor's Off. of Empl. Relations, 259 A.D.2d 940, 941). Accordingly, ever mindful of the policy of our courts to defer to an administrative agency on issues within their expertise, reviewing them only on limited grounds (see, Uniformed Firefighters Assn. of Greater N.Y. v. City of New York, 79 N.Y.2d 236, 241-242; Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 363), our standard of review in these matters is whether the record as a whole provides a rational basis for the determination to deny the grievance (see, Matter of Curtiss v. Angello, 269 A.D.2d 675; Matter of Gergis v. Governor's Off. of Empl. Relations, 206 A.

The audits conducted as part of the review process revealed that, although the duties of the incumbents had changed, the principal distinction continued to be the greater supervisory and administrative responsibility of the higher grade title. In contrast to Matter of Rausch v. Pellegrini ( 237 A.D.2d 771), upon which petitioner relies, petitioner was not obligated to perform the duties of his supervisor. Nor is petitioner entitled to the relief he seeks merely because there is some overlap of the duties he performs and those of a Fish Wildlife Technician III (see, Matter of Bailey v. Governor's Off. of Empl. Relations, 259 A.D.2d 940, 941; Matter of Gorelick v. Governor's Off. of Empl. Relations, 227 A.D.2d 858). The record as a whole provides a rational basis for respondent's conclusion that petitioner was not performing out-of-title work and, therefore, Supreme Court correctly dismissed the petition.

An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time, unrelated to any temporary emergency requirement (see, O'Reilly v. Grumet, 308 NY 351, 355). Moreover, out-of-title work under the Civil Service Law has been established based upon a significant increase in supervisory responsibility (see, Matter of Rausch v. Pellegrini, 237 A.D.2d 771; Matter of Kuppinger v. Governor's Off. of Empl. Relations, 203 A.D.2d 664, 665). (Caruso v. Mayor of Village of South Glens Falls, 278 A.D.2d 608, 609