SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 25, 1968
IN THE MATTER OF SUFFOLK COUNTY ET AL., APPELLANTS,
NEW YORK STATE CIVIL SERVICE COMMISSION, RESPONDENT
Judgment of the Supreme Court, Suffolk County, entered November 25, 1964, affirmed, without costs.
Beldock, P. J., Rabin, Benjamin and Munder, JJ., concur: Martuscello, J., dissents.
Martuscello, J., dissents and votes to reverse the judgment and to grant the petition, with the following memorandum:
In this CPLR article 78 proceeding, petitioners appeal from the dismissal, on the merits, of their petition wherein inter alia they sought a judgment directing respondent to approve a rule of the Suffolk County Civil Service Commission which would place the Director of the Department of Fire Safety in the unclassified service. The "unclassified service" consists, in part, of "the head or heads of any department of the government who are vested with authority, discretion and control over a department, and who have power and authority to appoint and remove officers and employees therein" (Civil Service Law, § 35, par. [e]; [emphasis supplied]). Unlike the situation in Matter of Neff v. Falk (10 A.D.2d 789, affd. 9 N.Y.2d 1004), relied upon by the court below and the majority of this court, the Director of Fire Safety herein clearly has the power to "appoint qualified persons to the positions of employment established from time to time by the board of supervisors" and such employees are to be "under * * * [his] supervision and control" (Suffolk County Charter, § 1127; L. 1958, ch. 278, as amd. by Local Laws, 1963, No. 5 of County of Suffolk). Under the circumstances, I am of the view that the placement of the Director of Fire Safety in the unclassified service is warranted and proper. [44 Misc. 2d 557.]
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