Menashe Bensoul v. New York City Department of Social Services

60 A.D.2d 817, 401 N.Y.S.2d 212, 1978 N.Y. App. Div. LEXIS 9801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1978
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered April 15, 1977, granting petition, unanimously reversed, on the law, respondents are directed to serve their answer, the matter is remanded for further proceedings and the cross motion to dismiss the petition is denied, without costs and without disbursements. In this article 78 proceeding to compel respondents to permit petitioners to perform the job functions of their civil service title "Superintendent of Adult Institutions” and to enjoin respondents from requiring petitioners to perform functions inconsistent with that title, it is unclear from the record whether there is a rational basis for the creation of the job title "Director”, whether petitioners have not been permitted to perform the functions of the job title "Superintendent of Adult Institutions” and whether they are being required to perform functions inconsistent with the latter job title. In these circumstances, the petition is not insufficient as a matter of law and a dismissal is unwarranted. Respondents, however, must be afforded the opportunity to interpose an answer (Matter of Tobin v Ford, 49 AD2d 83, 85; CPLR 7804, subd [f]). While petitioners may not be compelled to perform out-of-title work, there is no requirement that they be permitted to perform all the duties of "Superintendent of Adult Institutions”, especially where there is some rational basis offered for the need to appoint a director (see Matter of Clare v Silver, 4 NY2d 107, 111-112). Conversely, petitioners may not be required to perform out-of-title work (see Civil Service Law, § 61). Concur—Murphy, P. J., Birns, Silverman and Markewich, JJ.