Killeen v. Crosson

—Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendants *927Edward V. Regan, as Comptroller of the State of New York, and the State of New York (collectively, State) contend that, based on the evidence presented at trial, a rational basis exists for the disparity between the salaries of Sullivan County Family Court Judges and Erie County Family Court Judges. We agree (see, Affronti v Crosson, 95 NY2d 713). The record establishes that the median home values were 26.2% higher in Sullivan County, yet the salary disparity was only 1.96%. We therefore modify the judgment by vacating the order granted November 18, 1997, by dismissing the first four causes of action and that part of the fifth cause of action concerning the claim of plaintiff Frank A. Sedita, Jr. arising out of his service as a Family Court Judge, and by vacating the award of attorney’s fees on those claims.

The State further contends that Supreme Court erred in granting plaintiff Frank A. Sedita, Jr., relief on that part of the fifth cause of action concerning his claim arising out of his service as a City Court Judge because the claim is time-barred. The State waived the affirmative defense of the Statute of Limitations by failing to raise that affirmative defense in its answer or motion to dismiss. In any event, that contention is raised for the first time on appeal and thus is not properly before us (see generally, Sovik v Healing Network, 244 AD2d 985, 988). Consequently, we remit the matter to Supreme Court to determine the amount of attorney’s fees to which plaintiff Sedita is entitled on that claim. (Appeal from Judgment of Supreme Court, Erie County, Doyle, J. — Counsel Fees.) Present — Pine, J. P., Hayes, Hurlbutt, Scudder and Lawton, JJ.