Richard V. HUNT, Plaintiff-Respondent, v. Honorable Jonathan LIPPMAN, as Chief Administrative Judge of Courts of State of New York and as Representative of Administrative Board of Judicial Conference of State of New York, H. Carl McCall, as Comptroller of State of New York, and State of New York, Defendants-Appellants.
Plaintiff, a Judge of Jefferson County Family Court, commenced this action seeking declaratory, injunctive and monetary relief to eliminate the disparity between his salary and salaries paid to Family Court Judges in Erie, Monroe and Sullivan Counties pursuant to Judiciary Law § 221-e. Supreme Court erred in granting plaintiff's motion for partial summary judgment on the third cause of action, eliminating the disparity between plaintiff's salary and the salary paid to the Family Court Judge in Sullivan County. Plaintiff failed to meet his “heavy burden of proving that there is no reasonably conceivable state of facts which rationally supports the distinction” in salary (D'Amico v. Crosson, 93 N.Y.2d 29, 32, 686 N.Y.S.2d 756, 709 N.E.2d 465). We note that the data regarding median home values in Jefferson and Sullivan Counties, presented for the first time in the brief of H. Carl McCall, as Comptroller of the State of New York, and the State of New York (defendants), are not properly before us (see, Affronti v. Crosson, 265 A.D.2d 817, 695 N.Y.S.2d 650). We reject the contention of defendants that plaintiff's claim for back pay is time-barred in part (see, Affronti v. Crosson, supra ).
Judgment unanimously reversed on the law without costs and motion denied.