Petitioner Donegan commenced working for the Nassau County Court in 1967 as a court office assistant. Upon passing the promotional exam for court assistant I, she was promoted to that title, effective October 6, 1972.
In 1973 a computer system was installed in the courthouse of the Nassau County Court. Donegan was one of the individuals assigned to operate the computer. At that time, the Nassau County court system had no job specifications containing computer duties because the most recent specifications were adopted in 1967, long before the court acquired the computer system. Donegan continued to maintain the docket books (an *687in-title duty); however, she performed that task by computer rather than by hand. Shortly after being assigned computer duties, Donegan petitioned the State Judicial Conference to adopt a new classification to cover the computer duties she was performing. For reasons unclear from the record, no action was taken.
Upon passing the promotional exam for court assistant II, Donegan was appointed to that title, effective January 18, 1979. As a court assistant II, she was assigned as a supervisor in the court’s computer room.
Pursuant to the State’s assumption of court costs, effective April 1, 1977, Judiciary Law § 39 (8) (a) called for the adoption of a new classification plan with the purpose of establishing a State-wide system of job titles and title standards. The new plan was adopted on May 28, 1979, and was effective retroactive to April 1, 1977.
On August 1, 1979, pursuant to the new classification plan, Donegan’s former title of court assistant II was assigned the new title of principal office assistant, the job specifications of which new title did not contain any mention of data-entry or computer skills or duties.
On or about September 12, 1979, Donegan filed a notice of intent to appeal the new classification. She alleged that her position should have been classified as a senior data entry supervisor rather than a principal office assistant since the title of senior data entry supervisor included computer skills and duties and was more closely related to the duties she had performed as a court assistant II.
During the pendency of the appeal, Donegan’s job line was reclassified from one which could properly be performed by a principal office assistant to one which could only be performed by a data entry supervisor. Donegan was provisionally appointed to the title of data entry supervisor.
By letter dated December 3, 1982, Donegan was notified that her classification appeal for the reclassification of her former title of court assistant II to a higher title was denied. By examining title specifications for court assistant II and principal office assistant, Chief Administrative Judge Herbert B. Evans concluded that the duties and responsibilities in both positions were comparable and refused to reclassify Donegan. In reaching that determination, however, Judge Evans made no mention of Donegan’s claim that she should be reclassified as a senior data entry supervisor. Instead, Judge Evans dis*688cussed reasons why Donegan could not be reclassified to the position of senior court clerk, relief she never even requested.
Donegan appealed Judge Evans’ determination to the Classification Review Board which issued its determination on July 14, 1983. The Board found that "the comparison of the former title specification for Court Assistant II with the new title standard for Principal Office Assistant provides a rational basis for the Chief Administrative Judge’s decision of December 3, 1982”. Donegan’s appeal was therefore dismissed.
In a petition dated August 1, 1983, Donegan, joined by the president of her collective bargaining unit, alleged that her classification as principal office assistant was made arbitrarily and capriciously in that it failed to take into consideration the actual duties performed by her, namely, computer-related functions. Petitioners further alleged that had Donegan’s actual duties been properly evaluated, she would have been classified as a data entry supervisor.
Special Term dismissed the petition, finding that the petitioners had failed to demonstrate that the Board’s determination was arbitrary or capricious. In doing so, it relied upon the rule that: "The performance of duties out-of-title, that is duties not properly subsumed under the title and description of the old position, creates no right to reclassification to new positions involving those forbidden to be used as a basis for reclassification” (Matter of Ainsberg v McCoy, 26 NY2d 56, 59; see also, Matter of Gavigan v McCoy, 37 NY2d 548, 551; Matter of McGuinness v New York State Off. of Ct. Admin., 96 AD2d 561, 563, affd 61 NY2d 279).
Although the title specifications for court assistant II did not include any computer-related duties, under the circumstances of this case the duties performed by Donegan cannot be deemed out of title and respondents’ failure to reclassify Donegan as a data entry supervisor was therefore arbitrary and capricious.
The situation here is like that which existed in Matter of Cook v Kern (278 NY 195), and should be accorded similar treatment. In Cook certain Department of Sanitation employees had been performing the duties of "stationary engineer in charge”, although no such formal position had been created by law. "Many years” later, in May 1936, a new classification of that title was created and a promotional examination held. The Court of Appeals found that all the original stationary engineers in charge "had obtained valid original appointments *689as stationary engineers, and when, prior to May, 1936, additional duties were imposed and increased emoluments conferred upon them under their departmental designation as 'Stationary Engineers in Charge,’ there were no promotion examinations to be taken and no eligible lists from which appointments could be made” Matter of Cook v Kern, supra, at p 199). The court held that, "[h]aving received original valid appointments, they have the right to remain in their positions, even though a new classification has been effected and new requirements exacted” (Matter of Cook v Kern, supra, at p 199).
Similarly, here Donegan lawfully occupied the position of court assistant I. When the additional computer duties were imposed upon her there were no promotional exams to be taken for a position encompassing those duties. Furthermore, the State Judicial Conference failed to respond to Donegan’s efforts to create a new title. It was not until some six years later, when the State-wide classification plan was adopted, that a title encompassing Donegan’s computer duties first came into existence. Therefore, the State should now be estopped from claiming that Donegan’s computer duties were out of title to her position of court assistant II.
In this respect, it is noteworthy that such a result would not be inconsistent with an agreement between the State of New York Unified Court System and the Court Officers Benevolent Association of Nassau County. Pursuant to that agreement, certain standards were established for determining whether an employee was performing out-of-title duties:
"[A]n employee grievant shall be determined to be working out-of-title unless
"(a) The duties alleged to be out-of-title work are normally performed by employees in the grievant’s title and are not described in the class specifications for another title; or
"(b) The duties are reasonably related to the duties described in the class specifications for the grievant’s title; or
"(c) The duties are new duties which are a reasonable outgrowth of duties usually performed by employees in the grievant’s title.”
Donegan was performing the same duties as required of a court assistant II, except that she was performing them by computer rather than by hand. Since computer duties were not described in the class specifications for any other title, the above standards would mandate a determination that Done*690gan’s computer duties were in title. Similarly, the Court of Appeals has held that work will not be considered out of title if the heavier responsibilities grew out of the nature of the work as prescribed by the job specification (Matter of Goldhirsch v Krone, 18 NY2d 178, 184-185; Matter of Niebling v Wagner, 12 NY2d 314, 320; Matter of Mandle v Brown, 5 NY2d 51).
I disagree with the majority’s statement that by bringing the out-of-title work grievance Donegan implicitly conceded that the data-entry duties she performed were not in-title functions but constituted out-of-title work. Donegan’s grievance was directed towards the performance of computer duties within the State-wide classification system. Clearly, and it was so found, since there were job specifications in the State system which included the same computer duties being performed by Donegan, her performance of these duties, which were not included within her new title of principal office assistant, were out of title. However, nowhere does Donegan concede that the computer duties were out of title to her county title of office assistant II.
In conclusion, the circumstances of this case make it one which is ripe for consideration of "the realities which obtained in the operation of the agency prior to reclassification” (Matter of Mandle v Brown, 4 AD2d 283, 286, affd 5 NY2d 51, supra).
Accordingly, I vote to reverse the judgment appealed from, annul the determination of the respondent Classification Review Board, and grant the petition to the extent of directing the respondents to classify the title of the petitioner Donegan’s position as a data entry supervisor.
Thompson, J.P., and Rubin, J., concur with Niehoff, J.; Kunzeman, J., dissents and votes to reverse the judgment appealed from, annul the determination of the respondent Classification Review Board, and grant the petition to the extent of directing the respondents to reclassify the title of petitioner Donegan’s position to that of data entry supervisor.
Judgment of the Supreme Court, Nassau County, entered January 17, 1984, affirmed, without costs or disbursements.