Christopher v. City of Buffalo

88 A.D.2d 777, 451 N.Y.S.2d 517, 1982 N.Y. App. Div. LEXIS 17034

Opinion

— Appeal unanimously dismissed, without costs. Memorandum: The president of the firefighters’ union brought this proceeding to punish the City of Buffalo and its fire commissioner for contempt for violating an order of the court which restrained them from requiring fire department employees to perform out-of-title work except as permitted by applicable law. Subdivision 2 of section 61 of the Civil Service Law permits out-of-title assignments only “during the continuance of a temporary emergency”. At Special Term the petitioner did not seriously seek to punish the respondents for contempt and the Justice, without holding a hearing, issued a decision order “clarifying” the prior order. He determined that “if a battalion chief calls in sick * * * within eight hours of his next tour of duty, a temporary emergency exists and a captain may be assigned to act out-of-title as a battalion chief for that particular tour, but should the originally assigned battalion chief’s illness or disability continue until his next scheduled tour of duty, another battalion chief must be assigned to substitute for the sick or disabled chief, even if it involves extra duty or overtime.” Special Term’s decision order is, in effect, an opinion, for the future guidance of the parties, advising them concerning the meaning of the language used in the Civil Service Law. Since courts are not empowered to give advisory opinions, but must deal with particular instances when they arise (Matter of State Ind. Comm., 224 NY 13, 16, 18), and since the petitioner does not seek to pursue this proceeding by punishing the respondents for contempt, we dismiss the appeal. (Appeal from order of Supreme Court, Erie County, Doyle, J. — contempt.) Present — Hancock, Jr., J. P., Doerr, Denman, Boomer and Schnepp, JJ.