N.Y. Laws » CHAPTER Civil Service / ARTICLE Jurisdictional Classification / TITLE Classified Service
New York Consolidated Laws

N.Y. Civil Service Law § 42 (2026)

Non-competitive class

✓ current as of May 2026
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§ 42. Non-competitive class. 1. The non-competitive class shall
include all positions that are not in the exempt class or the labor
class and for which it is found by the commission having jurisdiction to
be not practicable to ascertain the merit and fitness of applicants by
competitive examination.  Appointments to positions in the
non-competitive class shall be made after such non-competitive
examination as is prescribed by the state civil service department or
municipal commission having jurisdiction.  No position shall be deemed
to be in the non-competitive class unless it is specifically named in
such class in the rules. Not more than one appointment shall be made to
or under the title of any office or position placed in the
non-competitive class pursuant to the provisions of this section, unless
a different or an unlimited number is specifically prescribed in the
rules.
  2. With respect to civil divisions of the state whose populations,
according to the latest federal decennial census or latest federal
special population census, are less than five thousand and, with respect
to those civil divisions whose populations are not determined as such by
the federal bureau of the census, whose populations are estimated by
their respective governing bodies to be less than five thousand, the
state commission shall, on or before July first, nineteen hundred
sixty-one, promulgate standards for determining the practicality of
examination, which it may from time to time thereafter amend, and shall
also provide information and advice to municipal commissions, to enable
such commissions to utilize the provisions of this section, when
appropriate, in order to enable such civil subdivisions to recruit and
retain in their employ competent and qualified persons.
  2-a. The state or municipal civil service commission by appropriate
amendments to its rules shall designate among positions in the
non-competitive class in its jurisdiction those positions which are
confidential or require the performance of functions influencing policy.
Notes of Decisions
Cited in 13 cases (1 in the last 5 years), 1985–2021 · leading case: City of Long Beach v. Civil Serv. Employees Ass'n, 867 N.E.2d 389 (N.Y. 2007).
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City of Long Beach v. Civil Serv. Employees Ass'n, 867 N.E.2d 389 (N.Y. 2007). · cites it 2× “Even in instances where a competitive examination is not "practicable," appointments to classified civil service positions outside the exempt and labor classes may be made only "after such non-competitive examination as is prescribed by the state civil service department or…”
Montero v. Lum, 501 N.E.2d 5 (N.Y. 1986). · cites it 2× “Even in instances where a competitive examination is not "practicable”, appointments to classified civil service positions outside the exempt and labor classes may be made only "after such non-competitive examination as is prescribed by the state civil service department or…”
Condell v. Jorling, 151 A.D.2d 88 (N.Y. App. Div. 1989). “Thereafter, petitioners instituted this proceeding pursuant to CPLR article 78 in which, essentially, they argued that the Commission’s determination permitting reclassification was contrary to Civil Service Law § 42 and NY Constitution, article V, § 6, and that DEC’s…”
Benson v. McCaul, 164 L.R.R.M. (BNA) 2309 (N.Y. App. Div. 2000). “The Commission’s decision to approve noncompetitive classification for the Risk Management positions was based on the impracticability of competitive testing of the “merit and fitness” of applicants (Civil Service Law § 42 [1]). Before the Commission in December 1997, PEF, as…”
Ward v. Chesworth, 125 A.D.2d 912 (N.Y. App. Div. 1986). “Thus, in the Burke case we looked to Civil Service Law § 42 (1) for the standard to be applied in reviewing a determination of the Superintendent which classified a position as noncompetitive; and in Matter of Sabatini v Kirwan ( 42 AD2d 1004 ), we applied Civil Service Law § 75…”
Murphy v. Rosenblatt, 140 Misc. 2d 450 (N.Y. Sup. Ct. 1988). “9; see, Civil Service Law § 42.) The competitive jurisdictional class includes all titles for which it is practicable to determine the merit and fitness of applicants by competitive examination (22 NYCRR 25.”
Wheeler v. Cnty. of Washington, 259 A.D.2d 902 (N.Y. App. Div. 1999). “Petitioner contends, however, that his position was wrongfully reclassified in 1996 from competitive to “unclassified” or noncompetitive status and that his position did not meet the requirements for “unclassified” status pursuant to Civil Service Law § 42 (1). Relying on his…”
Burke v. New York State Police, 115 A.D.2d 108 (N.Y. App. Div. 1985). · cites it 2× “The Superintendent has the authority to appoint members of the State Police and to promulgate rules and regulations, subject to the Governor’s approval, concerning the examination and qualification of applicants (Executive Law § 215 [3]; Civil Service Law § 42 [1]; Matter of…”
Berkowitz v. Burstein, 133 Misc. 2d 323 (N.Y. Sup. Ct. 1986). “Civil Service Law § 42 implements this constitutional mandate by providing that no such positions may be placed in the noncompetitive classification without a rational determination that merit and fitness of the applicants may not be established by competitive examination.”
Matter of Spence v. New York State Dept. of Civ. Serv., 2021 NY Slip Op 04994 (N.Y. App. Div. 2021). · cites it 2× “In 2017, the Department of Financial Services (hereinafter DFS) requested that the Civil Service Commission (hereinafter the Commission) place the titles of Director, Financial Services Programs 1 and 2 (hereinafter the director positions) in the noncompetitive jurisdictional…”
Shafer v. Gambino, 191 A.D.2d 947 (N.Y. App. Div. 1993). “As for petitioner’s assertion that because some two years have passed since these positions were filled a de facto reclassification of them has been effected, this is an argument that goes not to the finality of the reclassification, but rather to the issue of whether the…”
Gorey v. Bd. of Educ., 239 A.D.2d 902 (N.Y. App. Div. 1997). “The record establishes that plaintiff served a summons and complaint on defendants more than three years after the effective date of the resolution of defendant Municipal Civil Service Commission of the City of Buffalo (Commission) that designated his position as "confidential…”
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