Mayer v. Kummerle

24 A.D.2d 882, 264 N.Y.S.2d 616, 1965 N.Y. App. Div. LEXIS 3018

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1965
• Status: Published

Opinion

Two appeals by petitioner (1) from a determination by the Commissioner of Public Safety of the City of Mt. Vernon made December 26, 1963, which dismissed petitioner from that City’s Police Department; and (2) from an order of the Supreme Court, Westchester County, entered May 20, 1964, which dismissed his proceeding under article 78 of the CPLR to review the Commissioner’s determination. The dismissal was on the ground of lack of jurisdiction. Determination of the Commissioner annulled, without costs proceeding remanded, and a new hearing directed in accordance with the memorandum of this court. Appeal from order of the Supreme Court dismissed as academic, without costs. The Commissioner’s determination made no findings on the material issue whether petitioner’s conceded ailment was causally related to an accident which had occurred in the course of his work. Absent such findings, intelligent judicial review of the determination is impossible. (See Matter of New York Water Serv. Corp. v. Water Power & Control Comm., 283 N. Y. 23; Matter of Di Orio v. Murphy, 20 A D 2d 754; Matter of Pasch v. Gerosa, 18 A D 2d 982; Matter of Jackson v. Rohan, 1 A D 2d 89.) As the Commissioner who made this determination is no longer in office, we are directing a new hearing, instead of merely remanding for the purpose ,of making appropriate findings. In view of the foregoing, the appeal from the order of Special Term is academic. In any event, petitioner does not, in his brief, urge any grounds for reversal of that order. Ughetta, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.