Jones v. McCoy
| Decision Date | 18 April 1974 |
| Parties | In the Matter of Ernest K. JONES, Respondent, v. Thomas F. McCOY, as State Administrator of the Judicial Conference of the State of New York, Appellant, and City of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ernest K. Jones, in pro per.
Lawrence N. Marcus, New York City, for appellant.
Before STALEY, J.P., and GREENBLOTT, SWEENEY, MAIN and REYNOLDS, JJ.
Appeal, by permission, from an order of the Supreme Court at Special Term, entered December 14, 1973 in New York County, which denied appellant's motion to dismiss the petition, in a proceeding pursuant to article 78 of the CPLR, and transferred to the Third Department by order of the Appellate Division, First Department by order dated February 25, 1974.
On or about the 26th day of September, 1973, petitioner commenced a proceeding pursuant to CPLR article 78 whereby he sought a judgment directing appellant 'to correct, convert and classify petitioner's former titles/positions Library Clerk and Library Clerk* and his present title/position Assistant Librarian * to the position Law Assistant II, retroactively to July 1, 1966 with respect to Library Clerk, and to October 6, 1967 with respect to Assistant Librarian; * * *, including adjustments for the differences in pay for both of said titles and the increases provided and paid to persons and positions classified Law Assistant II.'
Petitioner is employed in the Supreme Court, First Department, having been appointed a Library Attendant on June 12, 1962 and having been promoted to Library Clerk on October 24, 1963, and to Assistant Librarian* on October 6, 1967. He states that, since November, 1972, he has been assigned full time as a Law Assistant to the Justices of the Appellate Term, Supreme Court, First Department. The petition also alleges that, pursuant to a Classification Plan adopted in the month of April, 1965, the functions and duties of the title Law Assistant II were specified, and that the functions and duties so specified were the same functions and duties which he had been performing continuously since his promotion to Library Clerk in October, 1963; that, although the Judicial Conference has conducted at least two desk audits and surveys of the Supreme Court Library since its 1966 Position Classification Field Study, it has failed and refused to classify, evaluate or convert his former or present titles; that he is entitled to be classified to the title or position which reflects the functions and duties which he has been lawfully performing since October, 1963, which are the same functions and duties which the Judicial Conference specified for the title of Law Assistant II.
Appellant moved to dismiss the petition upon the grounds that the petition was not timely brought; that mandamus does not lie to direct the performance of a discretionary act; that there is no allegation of any...
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