Alleva v. Fire Department

Appellate Division of the Supreme Court of New York

Alleva v. Fire Department

29 A.D.2d 928, 289 N.Y.S.2d 63, 1968 N.Y. App. Div. LEXIS 4224

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 18, 1968

StatusPublished

This text of 29 A.D.2d 928 (Alleva v. Fire Department) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alleva v. Fire Department, 29 A.D.2d 928, 289 N.Y.S.2d 63, 1968 N.Y. App. Div. LEXIS 4224 (N.Y. Ct. App. 1968).

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Opinion

Order and judgment denying petitioners’ application, and granting the respondents’ cross motion to dismiss the petition, unanimously modified, on the law, without costs or disbursements to either party, so as to reinstate the petition to the extent of the second prayer for relief contained therein, and respondents are permitted to serve their answer to the petition within 20 days after service of a copy of the order to be entered herein. The petition, insofar as the first prayer for relief is concerned was properly dismissed. There is nothing in the record to indicate that the Rules of the Civil Service Commission, with respect to job specifications, are being changed, or are about to be changed. As against the Fire Department, such contention could not stand since that department has no power to change the rules in question. However, the petition, insofar as the second prayer for relief is concerned, should be permitted to stand. That prayer for relief, in effect, states that Fire Lieutenants and Fire Captains have been permitted to work out of title. Such is sufficiently alleged in the petition since it is shown that the job specifications, with relation to pilots, clearly includes the duty to act as masters. However, with respect to captains and lieutenants, there is no such specification of duty. However, it is not clear what the duties of a master are, and such [929]*929must be determined upon trial. Since sufficient is set forth in support of the petitioners’ allegations that captains and lieutenants; are being permitted to work out of title, this proceeding is properly brought. (See Matter of Sheridan v. Kennedy, 19 Mise 2d 765, affd. 10 A D 2d 606, affd. 8 N Y 2d 794.) Further, since the Civil Service Commission has exclusive jurisdiction over the job specifications involved herein, it is a proper party to this proceeding. Concur— Botein, P. J., Stevens, Eager, McGivern and Rabin, JJ.

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Order and judgment denying petitioners’ application, and granting the respondents’ cross motion to dismiss the petition, unanimously modified, on the law, without costs or disbursements to either party, so as to reinstate the petition to the extent of the second prayer for relief contained therein, and respondents are permitted to serve their answer to the petition within 20 days after service of a copy of the order to be entered herein. The petition, insofar as the first prayer for relief is concerned was properly dismissed. There is nothing in the record to indicate that the Rules of the Civil Service Commission, with respect to job specifications, are being changed, or are about to be changed. As against the Fire Department, such contention could not stand since that department has no power to change the rules in question. However, the petition, insofar as the second prayer for relief is concerned, should be permitted to stand. That prayer for relief, in effect, states that Fire Lieutenants and Fire Captains have been permitted to work out of title. Such is sufficiently alleged in the petition since it is shown that the job specifications, with relation to pilots, clearly includes the duty to act as masters. However, with respect to captains and lieutenants, there is no such specification of duty. However, it is not clear what the duties of a master are, and such [929]*929must be determined upon trial. Since sufficient is set forth in support of the petitioners’ allegations that captains and lieutenants; are being permitted to work out of title, this proceeding is properly brought. (See Matter of Sheridan v. Kennedy, 19 Mise 2d 765, affd. 10 A D 2d 606, affd. 8 N Y 2d 794.) Further, since the Civil Service Commission has exclusive jurisdiction over the job specifications involved herein, it is a proper party to this proceeding. Concur— Botein, P. J., Stevens, Eager, McGivern and Rabin, JJ.

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Bluebook (online)

29 A.D.2d 928, 289 N.Y.S.2d 63, 1968 N.Y. App. Div. LEXIS 4224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alleva-v-fire-department-nyappdiv-1968.