Opinion
April 12, 1971
In a proceeding pursuant to article 78 of the CPLR by three employees of the Supreme Court, Westchester County, to compel appellants (1) to treat petitioners and their positions as being in Job Group XI of the Westchester County Pay-Plan retroactively to August 28, 1967 and (2) to pay petitioners the differences between the salaries actually received by them since that date and the salaries they would have received had they been treated as being in Job Group XI since that date, the appeal is from (a) an order of the Supreme Court, Westchester County, dated July 13, 1970, which denied appellants' motion to dismiss the petition upon objections in point of law, (b) a judgment of the same court, dated June 29, 1970, which granted the relief sought in the petition, and (c) a second judgment of the same court, dated July 13, 1970, which similarly granted the relief sought in the petition. Appeal from judgment of June 29, 1970 dismissed as academic, without costs, this judgment having been superseded by the judgment of July 13, 1970. Order and judgment of July 13, 1970 reversed, on the law, without costs, and petition dismissed. Petitioners are Deputy Clerks and Court Room Clerks in the Supreme Court, Westchester County. Appellants are the County of Westchester and various officers of that county. Prior to August 28, 1967 petitioners were classified in Group XI of the County Pay-Plan, as defined by the Westchester County Personnel Rules. On that date the Westchester Board of Supervisors reallocated petitioners' title to Group X, on the basis of a recommendation by management consultants who had been retained by the county to study and evaluate the county's entire pay plan and job group structure. When petitioners were reallocated from Group XI to Group X, their annual salaries were $12,272. At that time the maximum salary of Group XI, reached by a series of annual increments, was an amount greater than $12,272; the maximum of Group X was $12,210. After their reallocation to Group X, petitioners continued to receive the same $12,272 annual salaries they had been receiving while in Group XI, even though that salary was $62 above the maximum of Group X. As previously noted, petitioners were reallocated to Group X on August 28, 1967. One year later, on September 4, 1968, the County Clerk wrote to the Westchester County Personnel Officer "appealing" this reallocation. [The record does not disclose why, how, or pursuant to what authority this "appeal" was taken by the County Clerk.] Apparently no reply to this letter was received by the County Clerk. On January 21, 1970 he again wrote to the Personnel Officer, this time requesting a "notification of disposition". At some unspecified time thereafter he was advised that notices are sent only when the relief sought has been granted. On February 9, 1970, petitioners filed a grievance notice with the County Clerk, their superior officer. The stated grievance was their reallocation from Group XI to Group X and their failure to receive any annual salary increments since the reallocation. After a conference with petitioners (held in compliance with the County Personnel Rules), the County Clerk ruled on February 11, 1970 that this grievance was not within the ambit of the Rules' grievance procedures and the allocation of positions to job groups was a prerogative of the County Board of Supervisors. On May 25, 1970 petitioners instituted this proceeding, contending that their reallocation violated subdivision B2 of rule 3 of the Westchester County Personnel Rules, which provided: "The annual salary of the incumbent of any position which is so allocated or reallocated to a salary scale by the Board of Supervisors shall not be reduced for the then incumbent as long as such position is held by the then incumbent." Appellants moved to dismiss the petition on several grounds, including the Statute of Limitations. Special Term denied their motion and, instead, granted the relief sought by petitioners. We believe this determination was incorrect. The act complained of by petitioners occurred on August 28, 1967. Not until more than two and a half years later did petitioners, themselves, make any attempt to seek its administrative review or annulment. Even the earlier "appeal" by their superior, the County Clerk, was not taken until more than a year after the reallocation of petitioners; and it was then allowed to lie dormant for almost another year and a half. And it was not until almost three years had passed that petitioners instituted this proceeding. By then it was far too late. This is not a case of a continuing wrong which, in effect, tolls the Statute of Limitations. This is the usual case that comes squarely within that statute. Here, the four-month Statute of Limitations for the bringing of this proceeding (CPLR 217) started to run on August 28, 1967, when petitioners were reallocated to Group X, and the time to bring it expired four months thereafter. Hence, the proceeding is barred by the Statute of Limitations. Moreover, on the merits petitioners are not entitled to the relief they seek. We see here no violation of the County Personnel Rule barring any reduction of the "annual salary" of the incumbent of a position which has been reallocated to a different salary scale. Petitioners are still being paid the same "annual salary" they were receiving before the reallocation, even though it is higher than the maximum of the Group in which they now are. We see no merit in their contention that their "annual salary" has been reduced because they will not get the future increments they would have gotten if they had been left in Group XI. In our view, a fair and pragmatic construction of the words "annual salary" in the subject rule would define them as the current annual salary of the incumbent at the time of reallocation, not the maximum salary of the incumbent's previous grade, which he would not have reached until some years later after receiving a number of raises. Hence, we do not consider a bar against future increments (i.e., raises) as a violation of the rule forbidding a reduction of the incumbent's "annual salary". Indeed, a contrary holding might seriously hamper the efficient reorganization of governmental units, since, no matter how fair and rational the reclassification of positions, petitioners' construction of this rule would require the government to keep raising the annual salaries of the incumbents of reclassified positions even though those jobs had been fairly found not to merit the current salaries being paid them at the time the reorganization and reclassification occurred. We conclude that, so long as petitioners continue to receive the same annual salary they were receiving when the reallocation occurred, there has been no violation of subdivision B2 of County Personnel Rule 3 (cf. Matter of Hotaling v. Hurd, 4 A.D.2d 339, affd. 4 N.Y.2d 979) and there consequently is no merit in their petition. Rabin, P.J., Munder, Martuscello, Latham and Benjamin, JJ., concur.
The record does not disclose the maximum salary of Group XI, but petitioners' brief says it is $13,980.