Morello v. Evans

106 A.D.2d 640, 483 N.Y.S.2d 116, 1984 N.Y. App. Div. LEXIS 21611

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1984
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review respondents’ determination dated December 3,1981, which, in establishing a new title of principal administrative secretary, salary grade JG-21, and, in appointing petitioner to that title and salary grade, did so as of December 3,1981, rather than retroactively to May 8,1979, petitioner appeals from a judgment of the Supreme Court, New York County (Wolin, J.), dated September 28, 1983, which dismissed the proceeding. The appeal was transferred to this court by the Appellate Division, First Department, by order dated March 13, 1984.

Judgment affirmed, without costs or disbursements.

We find that the record contains competent evidence establishing that the respondent Chief Administrative Judge’s determination establishing the new title “Principal Administrative Secretary” (at salary grade JG-21) was based upon a reorganization of high-level administrative offices which had occurred. The decision to make appointments to that title prospective rather than retroactive in application was based to a significant extent upon consideration of whether there were moneys available to fund the new position. On the evidence in this record, the decision to create the new title and to do so prospectively was not shown to be arbitrary or unlawful (see 22 NYCRR 25.5 [b]; Matter of Dillon v Nassau County Civ. Serv. Comm., 43 NY2d 574; Matter of Grossman v Rankin, 43 NY2d 493).

Our determination is without prejudice to petitioner’s pending administrative appeal filed on December 26,1979. Titone, J. P., Weinstein, Rubin and Boyers, JJ., concur.