Rowland v. Kammerer , 62 Misc. 2d 63 ( 1970 )

George F. X. McInerney, J.

Petition for an order pursuant to CPLR article 78 directing the respondents to pay to the petitioner differential night pay for the period of petitioner’s employment is granted.

The petitioner has worked a night shift ever since he was employed by the county on September 18, 1961.

When the respondent Board of Supervisors made provision for a one-step increase for night work, petitioner inquired about it of his supervisor and was told that night differential would not be granted to him. Apparently petitioner wanted to work the night shift and stated that he would be willing to do so without the differential.

After the contract between the county and the Civil Service Employees Association became effective on January 1, 1969. petitioner again brought up the question of additional salary for the night differential and was given the same answer as previously. Apparently once again petitioner stated he preferred to work on the night shift rather than be transferred.

The county contends that the petitioner’s actions in effect amounted to a waiver and that he made it knowing that there would be no night differential for him.

The court finds that it is patently unfair to expect the petitioner to waive his rights to the night differential in view of the custom thereto and the contract with the Civil Service Employees Association.

A hearing shall take place before this court on February 25, 1970, at 9:30 a.m., to determine the sum of money due to the petitioner for the night differential.