Niagara Falls Fire Department Officers Ass'n v. Shiah

247 A.D.2d 927, 668 N.Y.S.2d 970, 1998 N.Y. App. Div. LEXIS 1298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1998
• Status: Published

Opinion

Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting the petition to enjoin the appointment of firefighters to the position of fire captain on a temporary basis and in declaring that such appointments contravened Civil Service Law § 61 (2) and NY Constitution, article V, § 6. The record presents factual issues whether the appointments were made lawfully pursuant to Civil Service Law § 64 (cf, Matter of Niagara Falls Fire Dept. Officers Assn, v Bowser, 145 AD2d 907), and that issue should not have been decided without a hearing (see, CPLR 7804 [h]). Thus, we remit the matter to Supreme Court for a hearing. (Appeal from Judgment of Supreme Court, Niagara County, Fahey, J. — CPLR art 78.)

Present — Green, J. P., Hayes, Callahan, Balio and Fallon, JJ.