Opinion
December 30, 1970
Appeal from a judgment of the Supreme Court at Special Term, entered June 27, 1969 in Kings County, which granted petitioner's application in a proceeding under CPLR article 78 to annul a classification issued by the State Administrator of the Administrative Board of the Judicial Conference and to compel the reclassification of petitioner. This proceeding has been transferred here pursuant to CPLR 5711, by order of the Appellate Division, Second Department, entered October 7, 1970. Petitioner is employed as Clerk in the Supreme Court, Kings County. Prior to March, 1966, he was classified as Clerk, Grade B. Pursuant to a "Classification Plan" promulgated by the Administrative Board of the Judicial Conference, petitioner was reclassified as Clerk I, effective July 1, 1966. While some of the Clerks previously in Class B were in fact reclassified as Clerk II, petitioner, however, was informed that if he wished to qualify for a Clerk II position, he would have to take a competitive examination. Petitioner contends that he is entitled to the classification of Clerk II, without being required to take an examination. The essence of petitioner's claim is that prior to reclassification he had been performing the functions of Clerk B and that these functions are substantially the same as those established for the position of Clerk II. The mere fact that an employee performed certain duties out-of-title does not entitle him to a new position incorporating such duties since this would in effect result in a promotion without taking promotional examination. (See Matter of Goldhirsch v. Krone, 18 N.Y.2d 178.) The question is whether respondent, prior to reclassification, had performed "in-title" the work now classified as Clerk II. This is a question of fact and within the province of the trier of the facts. Special Term found that prior to the reclassification, respondent, through competitive examination, and by virtue of his appointment as Clerk Grade B, was deemed qualified and did perform all the clerical duties of the court, including all those duties subsequently attached to the reclassified title of Court Clerk II, the position respondent now seeks. A review of the record reveals that there was a sufficient basis for this determination of fact. Judgment affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.