Gavigan v. McCoy

Decision Date21 October 1975
Citation37 N.Y.2d 548,375 N.Y.S.2d 858,338 N.E.2d 517
Parties, 338 N.E.2d 517 In the Matter of Hugh J. GAVIGAN, Jr., Appellant, v. Thomas F. McCOY, as State Administrator of the Judicial Conference of the State of New York, Respondent.
CourtNew York Court of Appeals Court of Appeals

John I. Coster, New York City, for appellant.

Michael Colodner and Michael R. Juviler, New York City, for respondent.

GABRIELLI, Judge.

The principal issue presented is whether the performance by petitioner, while an Assistant Special Deputy Clerk in the Bronx County Court, of the duties of a law assistant, entitled him to be reclassified to the position and title of Law Assistant II, following the 1962 court reorganization (N.Y.Const., art. VI, § 35).

Prior to the 1962 court reorganization (for a brief history see Matter of Ainsberg v. McCoy, 26 N.Y.2d 56, 308 N.Y.S.2d 368, 256 N.E.2d 528), petitioner, an attorney admitted to practice in New York, was employ in the Bronx County Court in the title of Assistant Special Deputy Clerk. While serving in that position, he performed legal duties for Judges of that court in addition to various clerical duties generally assigned to such clerks.

In mid-1966, the Administrative Board of the Judicial Conference notified petitioner that it was converting his precourt reorganization title to that of a Court Clerk I. Petitioner protested claiming that his title should have been converted to the title of Law Assistant II.

Following administrative appeals which proved unavailing, petitioner commenced this article 78 proceeding seeking an order annulling the Administrative Board's classification and directing that he be reclassified as a Law Assistant II. The petition alleged that his Assistant Special Deputy Clerk title was in the unlimited salary range category and without limitation of duty by statute or rule, and that since 1960 petitioner had been assigned to and performed the duties of a law assistant. Although conceding that he had been performing some of the duties of a law assistant, respondent correctly argued that the duties petitioner was assigned were out-of-title and, thus, could not form a basis upon which to convert his job title.

This proceeding was considered by this court on a prior occasion. At that time, we reversed an order of the Appellate Division dismissing the petition and remitted the matter to Special Term for further proceedings in accordance with the dissenting opinion at the Appellate Division (30 N.Y.2d 787, 334 N.Y.S.2d 178, 285 N.E.2d 320). The dissenters found the record, as it then stood, deficient in that specifically absent therefrom was evidence of the job description of an Assistant Special Deputy Clerk, and also as to whether the duties or salary range of that position were unlimited (36 A.D.2d 563, 564--565, 317 N.Y.S.2d 384, 385--387).

Upon remand, Special Term granted the relief sought in the petition and found that petitioner had an unlimited salary range and had performed the duties of a Law Assistant II under the title of an Assistant Special Deputy Clerk with the knowledge and consent of the predecessor agency of respondent. The Appellate Division reversed, one Justice dissenting, on the ground that performance of out-of-title work could not support a claim for reclassification. We affirm that determination.

For the past 25 years, this court has consistently held that the performance of out-of-title duties creates no right to reclassification to a new position involving those duties (Matt of Goldhirsch v. Krone, 18 N.Y.2d 178, 272 N.Y.S.2d 765, 219 N.E.2d 282; Matter of Niebling v. Wagner, 12 N.Y.2d 314, 239 N.Y.S.2d 537, 189 N.E.2d 805; Matter of Carolan v. Schechter, 7 N.Y.2d 980, 199 N.Y.S.2d 40, 166 N.E.2d 324; Matter of Williams v. Morton, 297 N.Y. 328, 79 N.E.2d 428). Out-of-title duties are duties 'not properly subsumed under the title and description of the old position' (Matter of Ainsberg v. McCoy, 26 N.Y.2d 56, 59, 308 N.Y.S.2d 368, 371, 256 N.E.2d 528, 530, Supra). Determinative of what duties are properly performed within any given title are the job specifications for that title (Matter of Roistacher v. McCoy, 32 N.Y.2d 479, 482, 485, 346 N.Y.S.2d 250, 252, 225, 299 N.E.2d 668, 669, 672; Matter of Goldhirsch v. Krone, 18 N.Y.2d 178, at pp. 182--183, 272 N.Y.S.2d at pp. 766--768, 219 N.E.2d at pp. 284--285).

We hold that petitioner is not entitled to be reclassified as a Law Assistant II. The job specifications for an Assistant Special Deputy Clerk in the Bronx County Court, introduced upon remand, show that legal duties were not properly undertaken under that title. The 'General Statement of Duties' in the specifications only requires the performance of 'clerical work'. In the 14 'Examples of Work' detailed for the title, not one requires extensive legal training. * Indeed, listed as 'Acceptable Experience and Training' is 'One year of experience as a Supervising Clerk, or Supervising Typist, or Law Stenographer, or as a Court Attendant.' By way of comparison, under the job specifications for the title of Law Assistant in the Bronx County Court, the titleholder was expected to perform 'professional legal research' on 'intricate questions of law'. 'Five years of legal experience subsequent to admission to the Bar' is listed as 'Acceptable Experience and Training'. It is thus manifest that legal duties could not have properly been subsumed under the job specifications for an Assistant Special Deputy Clerk for that position was in sum and substance only clerical in nature. We conclude, therefore, that petitioner is not entitled to be reclassified to the title of Law Assistant II.

We see no merit in the additional contention, advanced at Special Term and by petitioner here, that respondent should be estopped from reclassifying petitioner because its predecessor agency knew of and consented to petitioner's performance of legal duties while he was a court clerk. It has often been held that estoppel does not lie against the State, a municipality or their agencies where, as here, the governmental body was exercising its statutory or regulatory authority, and this is true irrespective of any representation or opinion by any of that body's officers or employees (City of New York v. Wilson & Co., 278 N.Y. 86, 99--100, 15 N.E.2d 408, 414--415; Matter of Town of Cornwall v. Diamond, 39 A.D.2d 762, 332 N.Y.S.2d 471; see 21 N.Y.Jur., Estoppel, § 76). It is not without significance that while in response to urgings that petitioner's status be clarified, the Civil Service Commission did reclassify petitioner's title as 'Assistant Special Deputy Clerk', thereby declining to grant the desired reclassification to 'Law Assistant II'.

The dissent appears to give emphasis to the concept that there was nothing contrived, deliberate or covert about the work assignment. It is thus appropriate to here note that, as then Judge Fuld pointed out in Matter of Goldhirsch v. Krone, 18 N.Y.2d 178, 185, 272 N.Y.S.2d 765, 769, 770, 219 N.E.2d 282, 286, Supra, it is immaterial that any deliberate manipulation be lacking. It is enough that the 'higher pay and heavier responsibilities * * * did not grow out of the * * * work as prescribed by the job specifications' (Matter of Niebling v. Wagner, 12 N.Y.2d 314, 320, 239 N.Y.S.2d 537, 541, 189 N.E.2d 805, 807, Supra). Interestingly, in Goldhirsch this court embraced (as it did in Niebling) and readopted the statement in Matter of Mandle v. Brown (4 A.D.2d 283, 286, 164 N.Y.S.2d 366, 370, affd. 5 N.Y.2d 51, 177 N.Y.S.2d 482, 152 N.E.2d 511), that '(i)f 'out-of-title' work was invalidly imposed upon or assumed * * * prior to the reclassification, it may not be validated by a reclassification...

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