Supreme Court, Ontario County, September 3, 2020

Charles D. Steinman, Rochester, for plaintiff/petitioner.

Christian M. Nadler, Fairport, for defendants/respondents.

Plaintiff/petitioner (hereafter plaintiff) filed this hybrid CPLR article 78 proceeding/declaratory judgment action on February 3, 2020, by an amended verified complaint. Plaintiff seeks a declaration that defendant/respondent Canandaigua Town Board's (the Town Board) Resolution No. 2017-176 (the Resolution) is in violation of Town Law § 27; and that the Town Board's determination to pay the two Town of Canandaigua town justices unequal salaries violates New York law and was arbitrary and capricious. Plaintiff seeks an order: vacating and annulling the Resolution; directing defendants/respondents to{**69 Misc 3d at 579} compensate him in an amount equal to that of the other town justice, including the value of any fringe benefits; and awarding retroactive salary from January 1, 2018.

Plaintiff moves for summary judgment pursuant to CPLR 3212, having filed a notice of motion concurrent with the filing of the amended verified complaint on February 3, 2020. Plaintiff contends there are no material issues in dispute. [*2]Defendants/respondents filed a cross motion for summary judgment on June 26, 2020. The court heard oral argument on August 31, 2020, and now decides the parties' motions as follows.

It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see also Potter v Zimber, 309 AD2d 1276 [4th Dept 2003]). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003], citing Alvarez, 68 NY2d at 324). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [citations omitted]; see also Hull v City of N. Tonawanda, 6 AD3d 1142, 1142-1143 [4th Dept 2004]). When deciding a summary judgment motion, the evidence must be viewed in the light most favorable to the nonmoving party (see Russo v YMCA of Greater Buffalo, 12 AD3d 1089 [4th Dept 2004]). The court's duty is to determine whether an issue of fact exists, not to resolve it (see Barr v County of Albany, 50 NY2d 247 [1980]; Daliendo v Johnson, 147 AD2d 312, 317 [2d Dept 1989]).

The basic facts here are not in dispute. Justice Prull is one of two part-time Town of Canandaigua town justices and has served in this capacity for several terms. Prior to his present term, the Town of Canandaigua provided a health insurance benefit in addition to his pay. The two justices serve staggered terms. At the time that the Town Board passed the Resolution, Justice Prull had 71/2 months left of his four year term which commenced on January 1, 2014, and would end on December 31, 2017. The other town justice, Hon. Walter W. Jones, Jr., was serving a term which began on January 1, 2016, and ending December 31, 2019.{**69 Misc 3d at 580}

Justice Prull was reelected and began his new term on January 1, 2018. Prior to his election, the Board passed the Resolution on May 15, 2017. Plaintiff provides a copy of the Resolution in support of his motion. The Resolution provides in part that the Town Board finds the town justice positions are not full time and the Town Board does not want to continue to offer medical insurance coverage for these positions. Further, the Resolution provides that medical insurance coverage is not provided for any part-time elected offices per section 806 of the Town of Canandaigua Employee Handbook. Additionally, the Resolution reads:

"WHEREAS, the Town Board is aware that it may not modify the compensation provided to a sitting town justice during a term of office and that any compensation change needs to begin prior to the commencement date of a new term of office; and

"WHEREAS, the Town Board shall treat each town justice position equally upon each respective new term of office; and

"WHEREAS, the temporary differential that may result as a result of the staggered terms of the two town justice positions is not material and the only feasible means to address the compensation changes sought by the Town Board; and

"NOW, THEREFORE, BE IT RESOLVED that the Town Board hereby eliminates Medical Insurance Coverage for both town justice positions commencing upon each new [*3]four-year term of office; and be it further

"RESOLVED, that this resolution shall not impair Medical Insurance Coverage for which either town justice position is currently eligible during each current term of office."

Accordingly, Justice Prull's new term began but he no longer received medical insurance coverage paid by the Town pursuant to the Resolution. Justice Jones, who was then in the middle of his term of office, continued to receive medical insurance coverage paid by the Town.^[FN*]

[1] In his first cause of action seeking declaratory judgment, plaintiff contends the Resolution violated Town Law § 27 (1), {**69 Misc 3d at 581}which provides in relevant part: "In all towns the salaries of all town justices shall be equal except that the town board may determine by a majority vote to pay salaries in different amounts." Plaintiff asserts that section 27 requires the Town to pay its two justices equally unless there is a difference in level of experience or the duties performed by each justice. Plaintiff alleges he has more judicial experience than the other justice and their respective duties and workload are essentially the same and consequently paying him less than the other town justice violates Town Law § 27. The court does not agree.

The Resolution determines to eliminate medical insurance coverage at the beginning of the new term of office of each justice and explicitly recognizes that the Resolution will temporarily result in a salary differential between the two justices. The Resolution was approved by a majority of the Town Board, passing five votes for, and zero against. Simply,

"[t]he Town Board is vested with the power to fix the salaries of its Town Justices and is not obligated to pay them equally (see, Town Law § 27 [1]). Thus, there is nothing illegal per se in the Town Board's . . . decision to pay petitioner a salary different from the other Town Justice. The amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed" (Matter of Taney v Town of Waterloo, 245 AD2d 1079, 1080 [4th Dept 1997], lv dismissed 91 NY2d 957 [1998]).

Accordingly, the Resolution does not violate Town Law § 27 and plaintiff has failed to show prima facie entitlement to judgment on his first cause of action. Defendants' cross motion for summary judgment dismissing plaintiff's first cause of action is granted for the above reason. The Resolution does not violate Town Law § 27 (Matter of Taney v Town of Waterloo, 245 AD2d 1079) and there is no question of fact requiring a trial on the first cause of action.

The determination of a town justice's salary, however, is properly the subject of a CPLR article 78 proceeding (Taney v Town of Waterloo, 245 AD2d at 1080). Plaintiff's second cause of action alleges the Town Board's decision to compensate him differently than his fellow town justice was arbitrary and capricious within the meaning of CPLR 7803 (3). Plaintiff asserts that because the Town Resolution reducing his compensation did not contain a rationale for paying him less than his fellow{**69 Misc 3d at 582} co-justice, it was therefore arbitrary and capricious. Further, Town Law § 27 only contemplates [*4]compensating justices differently only where there is a difference in experience or duties.

"[A]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. An agency's determination is entitled to great deference and, [i]f the [reviewing] court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (Matter of Thompson v Jefferson County Sheriff John P. Burns, 118 AD3d 1276, 1277 [4th Dept 2014] [internal quotation marks and citations omitted]).

[2] Here, within the Resolution, the Town Board states that it has examined the hours and duties of the town justices and concludes these positions are part time. Moreover, the Town Board does not want to continue to offer medical insurance coverage to the town justices as the Town does not offer medical insurance to any other part-time elected officials pursuant to section 806 of the Town of Canandaigua Employee Handbook. Further, the Town Board recognized that it could not alter the compensation of a town justice mid-term and therefore the elimination of Town provided medical insurance coverage could only commence at the beginning of a new term. Thus, one of the justices would be paid differently than the other temporarily as the first justice began his new term and the second justice finished his. The pay would become equal again upon commencement of the second justice's new term.

In addition, defendants/respondents submitted the affidavit of Town Manager Douglas Finch to provide the background of the Resolution. Mr. Finch is the Town Budget Officer and in this capacity he asserts that the Town's medical insurance costs "continue to increase on average 15% year after year, well in excess of the tax cap NYS requirement mandating a 2% or rate of inflation whichever is less increase on the tax levy" (aff of Doug Finch, Feb. 21, 2019, ¶ 6). In other words, the cost of providing health insurance was escalating far faster than the Town's ability to generate revenue.

Plaintiff does not submit any evidence tending to controvert Mr. Finch's assertions as to the fiscal issues, but responds that "fiscal desirability" is not a legitimate reason for the Town{**69 Misc 3d at 583} Board's action and even if it were, does not justify compensating Justice Prull less than Justice Jones. The court is not persuaded.

The court finds that addressing town expense issues by conforming the compensation packages of all part-time elected officials to address fiscal issues constitutes a rational basis (see Benjamin v Town of Fenton, 892 F Supp 64, 67 [ND NY 1995] [finding under an equal protection rational basis analysis that "there can be no question that generating budget savings . . . is a legitimate governmental purpose"]). That Justice Prull was to be compensated less than Justice Jones on a temporary basis was based upon the fact that compensation could not be legally changed mid-term. Thus, legal restrictions dictated the unequal compensation temporarily. This inequality is sanctioned under Town Law § 27 provided that the Town Board approves by majority vote, which occurred here. Moreover, this Resolution was not directed at Justice Prull. That is, the Town Board did not seek to reduce his compensation over that of Justice Jones. In fact, the Town attempted to accomplish the same objective in 2015 pursuant to Town Board Resolution 2015-232.

After Town Board Resolution 2015-232 passed, because of the staggered terms [*5]of office, Justice Jones was the first to begin a new term on January 1, 2016. Justice Jones thus found himself with less compensation than Justice Prull and he, too, brought an action seeking to vacate the resolution and restore his medical insurance benefit (Matter of Jones v Town of Canandaigua, Sup Ct, Ontario County, Oct. 6, 2016, Ark, J., index No. 113870-2016).

In deciding that case, Justice John J. Ark found that the Town Board had failed to determine by majority vote to pay the justices unequal compensation and thus respondents did not act in accordance with section 27 of the Town Law. Footnote three of Justice Ark's opinion in effect provided a road map the Town Board could follow to accomplish its goal, given the staggered terms of office of the town justices, without violating Town Law § 27 that essentially guided the Town Board's action in the present case.

In sum, the court finds plaintiff has failed to prima facie establish that the Resolution was arbitrary and capricious whereas defendants/respondents, through the text of Resolution 2017-176 and the affidavit of Douglas Finch, have established prima facie a rational basis for the Town Board's{**69 Misc 3d at 584} action and plaintiff has presented no evidence raising a question of fact. The court therefore finds Town Board Resolution 2017-176 was not arbitrary and capricious.

Plaintiff's motion is denied and defendants/respondents' motion to dismiss the second cause of action is granted.