Cromer v. Nassau County

• Decision Date: 21 July 1980
• Citation: 77 A.D.2d 610,430 N.Y.S.2d 633
• Parties: Charles CROMER et al., Respondents, v. COUNTY OF NASSAU, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 633

430 N.Y.S.2d 633

77 A.D.2d 610

Charles CROMER et al., Respondents, v. COUNTY OF NASSAU, Appellant.

Supreme Court, Appellate Division, Second Department.

July 21, 1980.

Edward G. McCabe, County Atty., Mineola (Robert O. Boyhan, Deputy County Atty., Mineola, of counsel), for appellant.

Richard M. Gaba, Mineola (Barry J. Peek, Mineola, of counsel), for respondents.

Before HOPKINS, J. P., and DAMIANI, TITONE and MANGANO, JJ.

MEMORANDUM BY THE COURT.

In an action, in effect, to declare that the individual plaintiffs are entitled to credit for employment under the Emergency Employment Act of 1971 (formerly U.S. Code, tit. 42, § 4871 et seq.) in determining their salary level upon securing civil service positions identical to those held under the Emergency Employment Act, defendant appeals from a judgment of the Supreme Court, Nassau County, dated September 14, 1979, which, in effect, held that said plaintiffs were entitled to such credit.

Judgment reversed, on the law, without costs or disbursements, and it is declared that the individual plaintiffs are not entitled to credit for employment under the Emergency Employment Act of 1971 in determining their appropriate salary level when they obtained civil service employment with the defendant.

The individual plaintiffs (hereafter plaintiffs) were hired in 1972 under the auspices of the Emergency Employment Act of 1971 (hereafter EEA) as auto mechanics for the Nassau County Police Department. During the course of their EEA employment, plaintiffs received step increases pursuant to a collective bargaining agreement between the Nassau Chapter, Civil Service Employees Association (hereafter the CSEA) and the defendant. In August, 1973, prior to permanent employment by the county, they had reached the level of grade 9, step 2 of the salary plan. Upon obtaining permanent civil service employment, however, plaintiffs were reduced to the entry level of grade 9, step 1, receiving no credit for their prior EEA experience.

This action was thereafter instituted for a judgment determining that pursuant to the CSEA contract, plaintiffs had commenced service with the county upon obtaining EEA employment and were therefore entitled to annual salary increments from the commencement of that employment. The Justice at Special Term concluded that plaintiffs had been county employees from the outset and granted the requested relief. We reverse.

The county contends that plaintiffs' claim should be barred by the Statute of Limitations set forth in CPLR 217 or, alternatively, for failure to exhaust administrative remedies. Concerning the former contention, it appears that plaintiffs' claim of improper reduction in salary is one which might properly be maintained as an action in contract (see Smith v. Helbraun, 24 A.D.2d 518, 261 N.Y.S.2d 829; Nelson v. Board of Higher Educ. of City of N.Y., 263 App.Div. 144, 147, 31 N.Y.S.2d 825, affd. 288 N.Y. 649, 42 N.E.2d 744). The period of limitations of the breach of contract claim underlying the declaratory judgment action controls the time in which the said action must be commenced (Solnick v. Whalen, 49 N.Y.2d 224, 425 N.Y.S.2d 68, 401 N.E.2d 190) and CPLR 217 is therefore inapplicable. Accordingly, the action was timely commenced.

The county's contention that plaintiffs have failed to exhaust administrative remedies is also without merit. Alt...