Opinion
August 13, 1984
Appeal from the Supreme Court, Suffolk County (Geiler, J.).
Judgment modified, on the law, by deleting from the decretal paragraph thereof the words, "the complaints are dismissed" and substituting therefor the words "it is declared that the defendants did not violate section 80 Civ. Serv. of the Civil Service Law, that subdivision 8 of rule III of the Suffolk County Civil Services Rules is not unconstitutional on its face or as applied to the plaintiffs, and that the defendants were justified in relying on said subdivision 8 of rule III in refusing to pay the plaintiffs the difference between the salary received by them in their lower job titles and the salary paid to those employed in the higher job titles to which they were subsequently reclassified". As so modified, judgment affirmed, with costs to the respondents.
While Special Term was correct on the merits, it should not have dismissed the complaints but instead should have made a declaration favorable to the defendants ( Holliswood Care Center v Whalen, 58 N.Y.2d 1001, 1004; Jewish Center v Mt. Eden Cemetery Assn., 12 N.Y.2d 773, 775; Lanza v Wagner, 11 N.Y.2d 317, 334, app dsmd 371 U.S. 74, cert. den. 371 U.S. 901). Lazer, J.P., Bracken, Weinstein and Niehoff, JJ., concur.