MATTER OF CAFISO v. McCOY

Appeal, transferred to this department pursuant to CPLR 5711, from a judgment of the Supreme Court, Suffolk County, in a proceeding brought pursuant to article 78 of the CPLR granting respondents' petition to compel the State Administrator of the Judicial Conference to change their permanent classification to "Court Clerk I" without the necessity of their taking and passing an additional Civil Service examination. Respondents are employed by the Supreme Court, Suffolk County. Eight of the respondents previously held the position of "Court Clerk", respondent Swiatscha the position of "Court of Record Clerk" and respondent Elliston the position of "Senior Court Record Clerk". In July, 1967 the Administrative Board of the Judicial Conference re-evaluated respondents' positions as Assistant Court Clerk. Eight of the respondents, however, eventually had their functions evaluated as Court Clerk I and were provisionally appointed to such positions, upon the condition that they pass the appropriate Civil Service examination. Respondents' contention is that they should be reclassified as Court Clerk I without an additional examination. With respect to respondents Ciccione, Elliston, Swiatscha and Waldron, they have not appealed their reclassification to the Special Classification Appeals Board and thus their resort to mandamus is premature ( Matter of Kalichstein v. McCoy, N.Y.L.J., Jan. 27, 1967, p. 17, col. 4, affd. 30 A.D.2d 640, affd. 23 N.Y.2d 978). Accordingly, the judgment in their favor must be reversed. And since the issue of compliance with the statute of limitations involves only these same four respondents whose petition we found premature, this question is moot at this juncture. With respect to the remaining six respondents Special Term has determined that their former duties as Court Clerk were described under the classification of Court Clerk I. Reclassification must conform to the "`realities which obtained in the operation of the agency prior to reclassification'" ( Matter of Mandle v. Brown, 5 N.Y.2d 51, 64). Here an examination of the duties and responsibilities of the various categories supports Special Term's determination. Judgment modified, on the law, by reversing so much of the judgment in favor of Peter Ciccione, Carolyn Elliston, Constance Swiatscha and David Waldron and dismissing their petition, and, as so modified, affirmed, with one bill of costs to respondents. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.