Mangiaracina v. Beame , 54 A.D.2d 418 ( 1976 )

Lane, J.

Petitioner was employed in the position of Investigator for the Department of Probation from December 1, 1969 to November 23, 1973, at which time he was appointed to the title of Probation Officer Trainee.

When petitioner was notified that he and all others holding the position of Probation Officer Trainee were being terminated because of the budgetary crisis in the City of New York, petitioner filed a claim for "bumping rights” which would allow petitioner, if certain prerequisites were met, to displace the junior incumbent in the competitive class and in the same layoff unit as petitioner (Civil Service Law, § 80, subd 5).

We all are in agreement with the conclusion of Special Term that petitioner’s last date of employment as a Probation Officer Trainee was June 30, 1975, and that petitioner has met all but one of the requirements of subdivision 5 of section 80 of the Civil Service Law.

In contention is whether the position of the junior incumbent sought by petitioner is in "a lower salary grade than the position from which the displacing incumbent is suspended or displaced” (Civil Service Law, § 80, subd 5).

The litigants do not raise the issue of whether or not there is a junior position presently held by a junior incumbent which would be available to the petitioner, and it is implicit in the record before us that such a junior position is extant. Furthermore, subdivision 5 of section 80 of the Civil Service Law contemplates looking to an existing position in a salary grade and not to a specific junior incumbent with which to compare salaries. For example, the displacing incumbent’s new salary is calculated on the basis of the salary of the junior position, with credit given for the number of years served in the position from which the displacing incumbent came (Civil Service Law, § 131, subd 3), and not by a takeover of the displaced junior incumbent’s salary.

In the case at bar, had petitioner retained the position of Investigator (which position petitioner held prior to becoming a Probation Officer Trainee), his salary on July 1, 1975 would have been $11,525 annually, while the salary of a Probation Officer Trainee on July 1, 1975, had the position not been abolished, would have been $12,200 annually.

New York City civil service parlance does not include use of the phrase "salary grade,” though the New York State Civil Service Law does utilize it (cf., e.g., New York City Civil Service Rules and Regulations, § 6.5.3[b] with Civil Service Law, § 131, subd 3, par [c]). Nonetheless, the New York City Civil Service Rules and Regulations mandate adherence, whenever possible, to the provisions of the New York State Civil Service System (New York City Civil Service Rules and Regulations, § 6.5.1).

The method of determining whether a New York City employee meets the criterion of subdivision 5 of section 80 of the Civil Service Law with regard to salary must therefore contemplate comparison of the salary of the displacing incumbent in his permanent position with his salary in the junior position, computed by adding to the salary of the junior position credits for the number of years served in the position from which the permanent incumbent came (Civil Service Law, § 131, subd 3). Petitioner, whose salary would have been $12,200 annually, is seeking a junior position in which his salary would have been $11,525 annually. Since petitioner has met all the criteria of subdivision 5 of section 80 of the Civil Service Law, as applied to the New York City Civil Service System, he is entitled to the relief requested.

Accordingly, the judgment of the Supreme Court, New York County (Helman, J.), entered October 6, 1975, granting the petition and annulling the respondents’ determination, should be affirmed without costs or disbursements.