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Supreme Court, Appellate Division, Third Department, New York.

Culver K. BARR et al., Respondents, v. Matthew T. CROSSON, as Chief Administrator of the Courts of the State of New York, and as Representative of the Administrative Board of the Judicial Conference of the State of New York, et al., Appellants.

Decided: July 22, 1999

Before:  MIKOLL, J.P., MERCURE, PETERS, CARPINELLO and GRAFFEO, JJ. Michael Colodner, Office of Court Administration (John J. Sullivan of counsel), New York City, for appellants. Julian & Pertz (Robert F. Julian of counsel), Utica, for respondents.

Appeal (transferred to this court by order of the Appellate Division, Fourth Department) from an order of the Supreme Court (Kehoe, J.), entered May 26, 1998 in Monroe County, which, inter alia, granted plaintiffs' motion for payment of prejudgment interest on their award of back pay.

Upon a prior appeal in this case, the Fourth Department found that the salary disparity between plaintiffs, current and former County Judges in Monroe County, and their judicial counterparts in Albany County violated plaintiffs' right to equal protection of the laws (see, Barr v. Crosson, 236 A.D.2d 875, 653 N.Y.S.2d 756).   Accordingly, as to those plaintiffs whose claims were not time barred, a judgment for back pay was awarded (see, id., at 876, 653 N.Y.S.2d 756).   The sole issue before this court is whether Supreme Court (175 Misc.2d 865, 672 N.Y.S.2d 624) erred in applying prejudgment interest to this judgment pursuant to CPLR 5001(a).

 In Davis v. Rosenblatt, 159 A.D.2d 163, 173, 559 N.Y.S.2d 401, appeal dismissed 77 N.Y.2d 834, 566 N.Y.S.2d 588, 567 N.E.2d 982, 79 N.Y.2d 822, 580 N.Y.S.2d 200, 588 N.E.2d 98, lv. denied 79 N.Y.2d 757, 583 N.Y.S.2d 193, 592 N.E.2d 801, a case factually identical to the instant action, this court held that back pay awards in judicial salary disparity actions “should not include prejudgment interest pursuant to CPLR 5001(a)”.   The Second Department has similarly held (see, Deutsch v. Crosson, 171 A.D.2d 837, 567 N.Y.S.2d 773, lv. denied 78 N.Y.2d 857, 574 N.Y.S.2d 938, 580 N.E.2d 410).   Since plaintiffs have advanced no persuasive argument or authority as to why this court should reject its own precedent, we reverse Supreme Court's order and reiterate that prejudgment interest should not be calculated on back pay judgments in judicial salary disparity actions.

 We are compelled to comment briefly on the primary basis upon which Supreme Court ordered prejudgment interest in this case, namely, its contention that the relationship between the parties was contractual.   The court found that “[p]laintiffs' claims are for payment of the salaries they were entitled to receive for the labor they performed pursuant to their employment contract with defendant[s].  Consequently, they are entitled to prejudgment interest under CPLR 5001” (175 Misc.2d 867-868, 672 N.Y.S.2d 624, supra).   The salaries paid to judges in this State are not contractual rights;  rather, they are creatures of statute-Judiciary Law § 221-e (see, e.g., Cook v. City of Binghamton, 48 N.Y.2d 323, 330, 422 N.Y.S.2d 919, 398 N.E.2d 525 [legislative acts fixing salaries and compensation are not presumed to create a contract];  Matter of Bookhout v. Levitt, 43 N.Y.2d 612, 618, 403 N.Y.S.2d 200, 374 N.E.2d 111 [office of municipality whose salary is fixed by law is entitled to that salary as an incident of office and not as a contractual right of employment] ).   This being the case, and because plaintiffs were therefore not awarded damages for breach of contract (indeed no such cause of action was even asserted), the award of prejudgment interest based upon breach of the parties' “employment contract” was in error.

Finally, in light of the U.S. Supreme Court's decision in Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45, we are unpersuaded by plaintiffs' claim that they are entitled to prejudgment interest from defendants-i.e., the State of New York itself and two individuals sued in their official State capacity-pursuant to Federal decisional authority (see, e.g., Gierlinger v. Gleason, 160 F.3d 858 (2d Cir.1998);  Miner v. City of Glens Falls, 999 F.2d 655 (2d Cir.1993)) in which such interest has been awarded in back pay cases brought pursuant to 42 USC § 1983.

Plaintiffs' remaining contentions have been reviewed and rejected as unpersuasive.

ORDERED that the order is reversed, on the law, without costs, and motion denied.



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