Opinion
May 11, 1971
Judgment, Supreme Court, New York County, entered October 26, 1970, unanimously reversed, on the law, without costs and without disbursements, the determination of respondent State Administrator reinstated, and the petition dismissed. Petitioner-respondent, a court officer in the former Municipal Court, pursued special investigative work, as assigned by the Presiding Justice thereof, and was "established in the grade of Lieutenant of Uniformed Court Officers" in recognition of his "background and experience." After court reorganization in 1962, the assignment and grade were both continued by the Director of Administration of the successor Civil Court. On this basis, petitioner applied to respondent-appellant for re-evaluation from Court Officer to Senior or Supervisory Court Officer, claiming that, inasmuch as the duties and responsibilities assigned to and carried out by him prior and subsequent to court reorganization were identical, and, as well, identical with respondent's specifications for the superior positions, he was entitled to conversion and advancement accordingly. It was refused; petitioner brought on this proceeding, and was sustained at Special Term. No issue of fact appears as to either allegation: that he performed the same work before and after reorganization, and that it was the work called for by respondent's specifications. Nor is there any question but that the work was performed efficiently and with devotion. But these considerations do not control, the difficulty being that petitioner's sole civil service title, attained by competitive examination, is that of Court Officer, and that all the special work done by him, before as well as after his designation as "Lieutenant", a nonexistent title in civil service, was performed "out-of-title." "It is undisputed that if the prior duties had been unlawfully performed, that is, had been out-of-title, a reclassification on that basis would not be permissible." ( Matter of Ainsberg v. McCoy, 26 N.Y.2d 56, 58.) "The performance of duties out-of-title, that is duties not properly subsumed under the title and description of the old position, creates no right to reclassification to new positions involving those duties, and indeed such out-of-title work is forbidden to be used as a basis for reclassification" (citing cases). (P. 59.) No such proper subsumption is here found. Special Term held that "a persistent assignment to the same legally assigned duties, as in the case of this petitioner, for such an extended period of time cannot be confused with an incidental or temporary assignment," apparently deeming this a sufficient basis for the re-evaluation. This interpretation obviously represents a misreading of Matter of O'Reilly v. Grumet ( 308 N.Y. 351). The distinction is that there, unlike here, the assignment to long-time out-of-title work had been imposed upon civil service eligibles for the higher status, thus depriving them of promotion.
Concur — Markewich, J.P., Nunez, McNally, Steuer and Tilzer, JJ.