Ball v. State , 52 A.D.2d 47 ( 1976 )

Sweeney, J.

Claimant was appointed Chairman of the New York State Bingo Control Commission in June of 1962 when the commission was established and has continued to serve in that position ever since via subsequent five-year appointments. His present term expires June 1, 1979.

In the 1975 Executive Budget the Governor recommended abolition of the Bingo Commission and transfer of the regulation and control of bingo to the State Racing and Wagering Board. A bill implementing this recommendation passed only one house of the Legislature. The 1975-1976 State budget provided no funds for the Bingo Commission (L 1975, ch 50). There was, on the other hand, an appropriation to the State Racing and Wagering Board for "Regulation of Wagering” for "Personal service—regular”, an amount which represented an increase of some $236,000 over such appropriation in the 1974-1975 State budget.

Since April 1, 1975, claimant has received no salary or expense payments. The offices of the Bingo Commission have been dismantled and, although claimant performed services for the commission as best he could from April 1, 1975 to July 16, 1975, he ceased performing such services when Bingo personnel was ordered by the Racing and Wagering Board personnel not to perform services for claimant, nor to give him any information. Claimant filed a claim in the Court of Claims on July 29, 1975, seeking salary and expenses from April 1, 1975 to the date of filing of said claim. Claimant’s motion for summary judgment to the extent that he is entitled to the appropriate amount of his unpaid salary, plus interest, was thereafter granted.

On this appeal claimant has withdrawn his cross appeal. The State first contends that the Court of Claims lacked jurisdiction to determine the claim in the absence of a judgment of the Supreme Court reinstating claimant to his position as Chairman of the State Bingo Commission. We disagree. Claimant’s removal was not accomplished by a body or officer against whom an article 78 proceeding would lie. Nor would an article 78 proceeding in the nature of mandamus to compel the Comptroller to pay claimant’s salary be effective. The comptroller cannot audit a claim for salary unless an appropriation applicable thereto has been made. (State Finance Law, § 43.) Where the Comptroller has refused to audit a claim for salary because no money has been appropriated, the Court of Claims should determine such claim. (O’Neil v State of New York, 223 NY 40.) Since it is alleged that the State owes claimant money, the Court of Claims has jurisdiction of the subject matter and it is the only forum in which the State has consented to be sued. (Friedman v State of New York, 24 NY2d 528, 536.)

The central issue on this appeal is whether claimant’s position was abolished by the Legislature upon the enactment of the 1975-1976 State budget bill (L 1975, ch 50). Claimant’s position was statutorily created and his term of office, salary and duties statutorily prescribed. (Executive Law, art 19-B, § 169, subd [j].) The abolishment of such a position may be accomplished only by direct action of the Legislature (Matter of Friedman v D’Antoni, 50 AD2d 9, app dsmd 38 NY2d 1002). The State urges that the passage of chapter 50 of the Laws of 1975 constituted such direct action by the Legislature and claimant’s position was thereby effectively abolished. It points to the Executive Budget, a joint report by the Senate Finance Committee and the Assembly Ways and Means Committee and to circumstances surrounding the enactment of such budget bill to demonstrate the required legislative intent to abolish claimant’s position. Claimant, on the other hand, asserts that since there was a failure to pass legislation specifically designed to abolish his position, it was not abolished. We agree. We do not find the direct legislative action necessary to abolish claimant’s position in the enactment of the 1975-1976 State budget, nor would a repeal by implication of article 19-B of the Executive Law by such statute because of failure to appropriate funds for claimant’s salary, constitute such direct action.

While the appropriations set forth in the 1975-1976 budget were determined on the basis of the Governor’s recommendations in his Executive Budget and no appropriation was included therein for the Bingo Commission, the State cannot deprive claimant of the salary for his fixed-term position as prescribed by the Executive Law by refusing to appropriate funds therefor. The Legislature must abolish such a statutorily fixed-term position by a legislative act which specifically provides therefor and states in explicit language that such is the intent. In the case before us we are not dealing with the abolition of positions in the civil service and the transfer of functions of agencies where no funds had been appropriated by the Legislature, as was the case in Matter of Lorraine v Carey (Sup. Ct., Albany County, April 1975, Gibson, J.), relied on by the State. (Cf. People ex rel. Davison v Williams, 213 NY 130.) The case of Church of Ascension and Church of Holy Name of Jesus v New York State Racing and Wagering Board (NYLJ, Jan. 22, 1976, p 8, col 2) is not inconsistent. There the court held that chapter 50 of the Laws of 1975 effectively implemented the Governor’s recommendation to abolish the Bingo Commission and transfer its functions to the racing board. There was no issue in that case concerning the abolition of the position of the Chairman of the Bingo Commission which was statutorily created for a definite term of years.

The judgment should be affirmed, with costs.