REAGAN v. MILONAS (1999)

 Plaintiff, a former Judge of the Onondaga County Surrogate's Court, commenced this action seeking declaratory, injunctive and monetary relief to eliminate the disparity between his salary and salaries paid to Judges of the Surrogate's Court in four other counties pursuant to Judiciary Law former § 221-d and § 221-f.   Supreme Court erred in granting plaintiff's motion insofar as it sought summary judgment on the second cause of action, seeking to eliminate the salary disparity between plaintiff and Judges of the Surrogate's Court in Dutchess County.   Plaintiff failed to meet his burden of “demonstrating that no conceivable State interest rationally supports the distinction” created by Judiciary Law former § 221-d and § 221-f with respect to plaintiff and his counterparts in Dutchess County (Henry v. Milonas, 91 N.Y.2d 264, 268, 669 N.Y.S.2d 523, 692 N.E.2d 554).

 We reject plaintiff's contention that defendants are collaterally estopped from relitigating the constitutionality of the salary disparity at issue after Supreme Court (Murphy, J.) resolved the issue against defendants in an action brought by plaintiff's successor and defendants abandoned their appeal from that part of the order and judgment (see, Wells v. Crosson, 210 A.D.2d 932, 621 N.Y.S.2d 974).   The determination whether the distinctions in salary set forth in article 7-B of the Judiciary Law have a rational basis depends upon detailed factual analyses of such relevant factors as population, caseload and cost of living in the counties under comparison (see, Killeen v. Crosson, 218 A.D.2d 217, 221, 638 N.Y.S.2d 531;  see also, Burke v. Crosson, 85 N.Y.2d 10, 18-19, 623 N.Y.S.2d 524, 647 N.E.2d 736).  We cannot presume that those factors remained constant from plaintiff's term as Surrogate (1976-87) through the term of Surrogate Wells (1988-present) (see, Commissioner of Community Dev. v. Apton, 115 A.D.2d 271, 495 N.Y.S.2d 827).   Thus, plaintiff failed to meet his burden of establishing that the issues in the instant action are identical to those necessarily determined in Wells v. Crosson, supra (see, Dickinson v. Crosson, 219 A.D.2d 50, 53, 640 N.Y.S.2d 339;  Killeen v. Crosson, supra, at 220, 638 N.Y.S.2d 531).

Judgment unanimously reversed on the law without costs and motion denied.

MEMORANDUM: