Opinion
December 20, 1991
Appeal from the Supreme Court, New York County (David B. Saxe, J.).
Defendants attempted, by Legislative amendments to State Finance Law § 200 (2-b), to effect a five-day lag payroll upon both represented and unrepresented non-judicial employees so as to offset State budget shortfalls for the year 1991-1992. A prior lag payroll of the same type was imposed upon similarly situated employees for the year 1990-1991, which was deemed invalid as violative of the Contract Clause of the United States Constitution. (Association of Surrogates Supreme Ct. Reporters v State of New York, 940 F.2d 766; Matter of Quirk v Regan, 148 Misc.2d 300; Matter of McDermott v Unified Ct. Sys., Sup Ct, Albany County, June 21, 1991.) Defendants invoke authority to impose this subsequent deferred payroll statute upon the fact that the contracts with the respective plaintiff unions had expired March 31, 1991.
The court below properly relied upon the continuation of benefits clause of Civil Service Law § 209-a (1) (e), concluding that plaintiffs' contractual rights continue even after expiration of the collective bargaining agreements in question. We reject defendants' claim that the continuation of benefits clause gives rise to statutory rights which may be repealed by subsequent legislation rather than contractual rights which are afforded protection under the Contract Clause of the Federal Constitution. The obligations established here were created by contract between the parties. Civil Service Law § 209-a (1) (e), requires a continuation of those benefits grounded and arising from contract (see, United States Trust Co. v New Jersey, 431 U.S. 1, 17, n 14). Because this continuation of benefits clause affects post-expiration of contract rights, it is not in conflict with Civil Service Law §§ 201 (12), 204 (3) or 204-a (1), which are related to pre-collective bargaining agreement requirements. Nor do we find the continuation of benefits clause repealed or modified by the deferred lag payroll statute since there is neither an express repeal or convincing language from which an intent to repeal may be found (Society of N.Y. Hosp. v Johnson, 5 A.D.2d 552, affd 5 N.Y.2d 102).
We further find that the impairment of contract here was substantial and that the deferred payroll statute may not be justified as a legitimate means of alleviating the State's fiscal crisis (Association of Surrogates Supreme Ct. Reporters v State of New York, supra). Further, a severance of the portions of the statute, affecting unrepresented employees is not warranted. It is most doubtful that the Legislature would have imposed this measure upon unrepresented employees, whose numbers approximate only ten percent of the employees affected, alone (see, Association of Surrogates Supreme Ct. Reporters v State of New York, 778 F. Supp. 210).
Leave to intervene on behalf of Council 82, AFSCME, AFLCIO is granted.
Concur — Sullivan, J.P., Carro, Wallach, Kupferman and Asch, JJ.