Bates v. Steuben County
| Decision Date | 05 March 1982 |
| Citation | 448 N.Y.S.2d 625,113 Misc.2d 68 |
| Parties | Application of Larry D. BATES, Petitioner, For Judgment Pursuant to Article 78 of the CPLR Compelling Payment of Salary v. The COUNTY OF STEUBEN, New York, Respondent. |
| Court | New York Supreme Court |
This is an Article 78 Proceeding brought by the District Attorney of the County of Steuben, Larry D. Bates, against the County of Steuben. The petitioner is the duly elected District Attorney for the County of Steuben having been elected to office in the general election on the 4th day of November, 1980, for a full three year term commencing on the 1st day of January, 1981.
The Board of Supervisors of the County of Steuben designated the office of District Attorney of the County of Steuben a full-time position pursuant to Section 700(8) of the County Law of the State of New York. This designation became effective on the 1st day of January, 1975.
On the 29th day of December, 1980, Local Law No. 2 of the year 1980 was adopted by the Steuben County Board of Supervisors. Local Law No. 2 establishes the salary of the Steuben County District Attorney at $40,000.00 per year, and further, Section 4 of the Local Law states that the local law "..... is intended to supersede Article 6-A, Section 183-a of the Judiciary Law of the State of New York....."
On or about the 20th day of February, 1981, the petitioner received a notice from the Treasurer of the County of Steuben that the compensation for the District Attorney of the County of Steuben would be $40,000.00 per annum, payable bi-weekly. On or about the 2nd day of April, 1981, the petitioner served a notice on the Steuben County Board of Supervisors requesting that he be paid pursuant to Section 183-a of the Judiciary Law of the State of New York. The petitioner received no response from the Steuben County Board of Supervisors. The County of Steuben continued to pay the salary of $40,000.00 during the year of 1981.
On the 26th day of January, 1982, a Notice of Petition and Petition was served upon the County of Steuben requesting entry of judgment for petitioner in the amount of $10,400.00 with interest from January 1, 1982, and judgment directing the respondent to pay petitioner's 1982 salary in accordance with Judiciary Law Section 183-a.
The respondent interposes an affirmative defense that the petitioner's claim based on the County's failure to adequately compensate him for 1981 is barred by CPLR 217 which requires an initiation of a proceeding pursuant to Article 78 of the CPLR within four months after the alleged wrongful act. The respondent also alleges that County Law Section 201 allows the County to fix the salaries of all officers paid from County funds. The primary contention of the respondent is that Section 183-a of the Judiciary Law is not a general law, and therefore, the State of New York does not have the authority to act in relationship to the affairs of any local government pursuant to Article IX, Section 2(b)(2) of the Constitution of the State of New York.
Initially, the Court must decide whether the petitioner's claim is barred by CPLR 217. The petitioner's Article 78 Proceeding lies in mandamus. As stated in Parsons v. Department of Transportation, 74 Misc.2d 828, 830, 344 N.Y.S.2d 19:
"CPLR 217 limits the time within which a proceeding may be commenced against a body or officer to four months after the determination to be reviewed becomes final or binding, or within four months after refusal of a demand to perform a duty enjoined by law. The latter limitation on the right to bring on a mandamus proceeding becomes a bar when a petitioner unreasonably delayed to make a demand so as to postpone indefinitely the time within which to institute such a proceeding (Matter of Central School Dist. No. 2 of Towns of Coeymans, New Scotland and Bethlehem v. New York State Teachers' Retirement System, 27 A.D.2d 265, 278 N.Y.S.2d 141).
In the instant case the petitioner was notified by the Treasurer of the County of Steuben that his compensation would be $40,000.00 per annum. The petitioner promptly served a notice on the County of Steuben on April 2, 1981, requesting that he be paid a salary pursuant to Section 183-a of the Judiciary Law. The respondent failed to reply in any manner to this demand. Since the time limitation imposed by CPLR 217 commences at the time that the petitioner's demand is refused, petitioner's claim is not time barred.
The petitioner cannot be charged with knowledge that his claim had been refused until the 31st day of December, 1981, when, in his last paycheck, he did not receive an amount sufficient to place his annual salary at the level dictated by Section 183-a of the Judiciary Law. Even if the respondent had communicated a refusal to the claim, the time barrier will not apply where the claim is a failure by the respondent to comply with a continuing constitutional or statutory duty. (Toscano v. McGoldrick, 300 N.Y. 156, 89 N.E.2d 873). Accordingly, the Court holds that the petitioner's claim for his 1981 annual salary is properly before the Court for its consideration.
The Legislature, in passing Chapter 1049 of the Laws of the State of New York of 1974, amended County Law Section 700(8), County Law Section 700(10), and Judiciary Law Section 183-a to extend to counties with populations ranging from forty thousand to one hundred thousand the option of designating the position of District Attorney full time, thereby becoming eligible to receive state aid in the amount of ten thousand dollars per year to be applied to the District Attorney's salary. At a meeting held on September 16, 1974, the Steuben County Board of Supervisors passed by unanimous vote, pursuant to Chapter 1049, Local Law No. 2 of the year 1974. Effective January 1, 1975, Local Law No. 2 established the office of District Attorney for the County of Steuben as a full-time position. By so doing, the Board rendered the County eligible to receive the annual state funded salary contribution and also subjected Steuben County to Judiciary Law Section 183-a's requirement that the District Attorney be paid a salary at least equivalent to that of a County Judge in this county.
County Law Section 201, originally enacted in 1950, states:
"Notwithstanding the provisions of any general law other than this chapter or of any special law to the contrary, each board of supervisors shall fix the salary of all officers paid from county funds, except the members of the judiciary...."
Arguably, by accepting the $10,000.00 annual salary contribution from the State, the board of supervisors has removed the position of District Attorney from the purview of County Law Section 201. Not since 1974 has Steuben County's District Attorney been paid exclusively from county funds.
However, even conceding for the moment that County Law Section 201 applies to the case at bar, Judiciary Law Section 183-a need not be read to do violence to the portion of Section 201 cited nor to repeal it by implication. In construing apparently conflicting statutory provisions, the Court must attempt to harmonize them. The repeal of an earlier statute by implication is not to be favored and should be resorted to only when two statutes are in irreconcilable conflict. (Peterson v. Martino, 210 N.Y. 412, 104 N.E. 916; People v. Dwyer, 215 N.Y. 46, 109 N.E. 103; Cimo v. State, 306 N.Y. 143, 116 N.E.2d 290; Urban League v. Monroe County, 71 A.D.2d 787, 419 N.Y.S.2d 339 (4th Dep't 1979). Thus, the board of supervisors, pursuant to County Law Section 201, is free to set the District Attorney's salary as long as they set it at a level consonant with the dictate of Judiciary Law Section 183-a. The latter provision establishes a minimum below which the District Attorney may not be paid. In material part, Section 183-a requires the board to pay the petitioner a salary equivalent to that received by a County Judge in Steuben County "together with such additional compensation as the (board) ... may provide by local law." Conceivably, a board in more prosperous times might wish to reward their District Attorney by granting him, at the commencement of a new term, a salary increase sufficient to place his salary above that earned by the County Judge.
A claim has been made by the respondent that § 183-a of the Judiciary Law is unconstitutional. In order for legislation to pass constitutional muster it must promote a valid state purpose. Does the legislation promote the health, comfort, safety and welfare of society?
"There is generally a very strong presumption that the Legislature has investigated and found the existence of a situation showing or indicating the need for or desirability of the legislation." (Matter of Taylor v. Sise, 33 N.Y.2d 357, 364, 352 N.Y.S.2d 924, 308 N.E.2d 442, quoting Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 209 N.E.2d 539.)
The burden of showing the unconstitutionality of a statute is on the party asserting it who must demonstrate such fact beyond a reasonable doubt. (McKinney's Consolidated Statutes, Book 1, Section 150). The respondent has made no showing that Section 183-a of the Judiciary Law of the State of New York is unconstitutional. In fact, the Court's own research reveals that a legitimate State purpose was served by its enactment, said state purpose being to assure effective enforcement of its laws by providing minimum salaries to attract and keep the best available prosecutors.
New York State Constitution Art. IX, Section 2(b)(2) states:
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Adams v. City of New York
... ... Plaintiffs' demands were not formally rejected (see, Matter of Bates v County of Steuben, 113 Misc 2d 68). Rather, at various times, administrative personnel even tried ... ...