McMorrow v. Rozzi

Appellate Division of the Supreme Court of New York

McMorrow v. Rozzi

136 A.D.2d 639, 523 N.Y.S.2d 600, 1988 N.Y. App. Div. LEXIS 443

Appellate Division of the Supreme Court of the State of New York·Decided January 19, 1988·Published·Cited by 1 cases

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Police Department of the County of Nassau, dated December 14, 1987, denying a request by a member of the petitioner Patrolmen’s Benevolent Association of the Police Department of the County of Nassau, Inc., for permission to engage in off-duty employment as a security guard.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

We note that the proceeding was improperly transferred since, absent a hearing, no issue arises as to the question of substantial evidence (CPLR 7804 [g]). Nevertheless, we treat [640]*640the merits (see, Matter of Portugal v Webb, 91 AD2d 997), and dismiss the petition which is in the nature of mandamus to review because the Commissioner’s denial of a request by a police officer to engage in off-duty security-related employment was within the proper exercise of his discretion and based upon cogent reasons. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.

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—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Police Department of the County of Nassau, dated December 14, 1987, denying a request by a member of the petitioner Patrolmen’s Benevolent Association of the Police Department of the County of Nassau, Inc., for permission to engage in off-duty employment as a security guard.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

We note that the proceeding was improperly transferred since, absent a hearing, no issue arises as to the question of substantial evidence (CPLR 7804 [g]). Nevertheless, we treat [640]*640the merits (see, Matter of Portugal v Webb, 91 AD2d 997), and dismiss the petition which is in the nature of mandamus to review because the Commissioner’s denial of a request by a police officer to engage in off-duty security-related employment was within the proper exercise of his discretion and based upon cogent reasons. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.

McMorrow v. Rozzi, 136 A.D.2d 639, 523 N.Y.S.2d 600, 1988 N.Y. App. Div. LEXIS 443 (N.Y. Ct. App. 1988).

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