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MATTER WILLIAM KROLICK v. ROBERT O. LOWERY (06/26/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.42199 <http://www.versuslaw.com>; 302 N.Y.S.2d 109; 32 A.D.2d 317 June 26, 1969 IN THE MATTER OF WILLIAM KROLICK, PETITIONER,v.ROBERT O. LOWERY, AS FIRE COMMISSIONER OF THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, ET AL., RESPONDENTS. IN THE MATTER OF FRED E. VYSE, PETITIONER, V. ROBERT O. LOWERY, AS FIRE COMMISSIONER OF THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, ET AL., RESPONDENTS Proceedings under article 78 of the CPLR (transferred to the Appellate Division of the Supreme Court in the First Judicial Department by an order of the Supreme Court at Special Term entered in New York County) to review determinations of respondent which, in the first proceeding, found petitioner guilty of refusal to obey orders of a superior and fined him 10 days' pay, and, in the second proceeding, found petitioner guilty of refusal to obey orders of a superior and of neglect of duty and fined him 10 days' pay and a forfeiture of two work days to be deducted from his annual leave. Jay Leo Rothschild of counsel (Edward M. Edenbaum, attorney), for petitioners. Edmund B. Hennefeld of counsel (Stanley Buchsbaum with him on the brief; J. Lee Rankin, Corporation Counsel), for respondents. Stevens, P. J. Tilzer and Steuer, JJ., concur with Stevens, P. J.; Eager, J., dissents in opinion; McGivern, J., dissents in part in dissenting opinion and votes to annul the determination with respect to petitioner William Krolick. Author: Stevens


Proceedings under article 78 of the CPLR (transferred to the Appellate Division of the Supreme Court in the First Judicial Department by an order of the Supreme Court at Special Term entered in New York County) to review determinations of respondent which, in the first proceeding, found petitioner guilty of refusal to obey orders of a superior and fined him 10 days' pay, and, in the second proceeding, found petitioner guilty of refusal to obey orders of a superior and of neglect of duty and fined him 10 days' pay and a forfeiture of two work days to be deducted from his annual leave.

Stevens, P. J. Tilzer and Steuer, JJ., concur with Stevens, P. J.; Eager, J., dissents in opinion; McGivern, J., dissents in part in dissenting opinion and votes to annul the determination with respect to petitioner William Krolick.

Author: Stevens

 These are article 78 proceedings brought separately by each petitioner to annul a determination of respondent Commissioner in which each was subjected to a fine and, in one instance, a two-day forfeiture. While factually dissimilar, common questions of law are posed. Inherent in the issues is the underlying question whether a directive by the Uniformed Firemen's Association (UFA) to its members shall take precedence over regulations and orders of the Fire Department. In short, what force shall control the policies of the department. The premise upon which the directive is based is that the applicable regulations and orders involve an infringement of constitutional rights. Questions, minor to the argument, but ever present in an article 78 proceeding of this nature, are whether there is substantial evidence to support the determinations, and whether there is a rational or reasonable basis for the rule or order. The facts in each case will be detailed separately prior to any consideration of the legal arguments advanced.

Petitioner Vyse, a fireman in the City Fire Department, reported for duty November 3, 1967, at about 5:30 p.m. At about 7:47 p.m. in response to a fire alarm he took his place in his bucket seat on the rear of the fire apparatus responding to the alarm. Vyse failed to buckle his seat belt as required by the regulations and, after the vehicle had proceeded some distance, he fell from his seat to the ground, injuring himself. Vyse testified later that he was trying to wave away an oncoming car. At the hospital to which he was taken, one of the medical officers of the Fire Department, after smelling Vyse's breath, requested that Vyse permit the taking of a blood sample to test alcoholic content. Petitioner refused to accede to the request and persisted in his refusal when ordered by his superior officers to permit the taking of a blood sample. Vyse stated that he refused to permit the taking of blood on the advice of the union representative who was present, and because the union was against it. The record indicates that Vyse admitted to having a few beers before reporting for work. The record contains, as an exhibit, an excerpt from the October, 1967 issue of Fire Lines, the official publication of the UFA, which states: "In the absence of a legal arrest, a member may refuse permission to allow his blood to be withdrawn for test purposes on the grounds that it is unlawful. The blood test sampling procedure constitutes an illegal usurpation of power and is in violation of the constitutional rights of the members. We urge every member to resist to the utmost the violation of his Constitutional rights."

Under date of November 1, 1967 a directive was issued by authority of respondent Commissioner to the members of the Fire Department. It advised such members that an opinion of the Corporation Counsel supported the present medical procedure of blood sampling in cases of suspected intoxication. "Therefore, all members accordingly are advised that a Medical Officer of the Fire Department may order a member to submit a blood sample for laboratory analysis when reasonable grounds exist for believing the member to be intoxicated. Failure to obey such an order will call for the preferring of charges for disobedience of orders." (Emphasis supplied.)

Charges were preferred against petitioner for neglect of duty for a violation of section 11.1.11 of the Regulations of the Fire Department, which provides: "Members shall exercise care to avoid injury when boarding and riding apparatus. Donning of boots and fire clothing should be done prior to boarding apparatus. Members riding apparatus shall use hand rails, hand straps and safety belts, when such are provided." It is not disputed that a safety belt was provided and not used.

Petitioner was charged also with disobedience of orders for violation of section 25.1.1 of the Regulations which states: "Members shall not violate their oath of office. They shall obey all laws, regulations, orders, commands and instructions governing members of the uniformed force. Such obedience shall be prompt, implicit and unqualified."

Section 25.1.4 of the Regulations states: "Members in uniform, or when on duty, shall not at any time, indulge in, or be under the influence of intoxicating liquors." The oath of office taken by a fireman when entering the Fire Department reads, in part, "I * * * do solemnly swear that I will * * * obey the orders and directions of my superiors, to the best of my ability."

After a full hearing petitioner was found guilty on both charged violations and fined 10 days' pay for violation of section 25.1.1, and a forfeiture of two work days for violation of section 11.1.11.

Petitioner instituted this article 78 proceeding to annul the determination, and the proceedings were transferred to this court by order dated October 9, 1968.

Petitioner Krolick, a fireman, reported for duty to Engine 220 at about 5:30 p.m. on March 18, 1968, and was notified that he was detailed to duty to Engine Company 269, about one and one-half miles distant. Krolick, according to his testimony, had been detailed there "a few other times." Krolick reported as ordered, arriving there about 6:30 p.m. Shortly after his arrival a Deputy Assistant Chief arrived and a line-up of firemen was ordered. All of the men except Krolick lined up on the right side of the engine. Krolick remained where he was until directed to join the line. The reason, as petitioner later testified, was because in Engine House 220 the custom was to line up front and left.

Petitioner was called out of line by Deputy Assistant Chief Kane who believed Krolick to be under the influence of some intoxicating beverage. The Chief testified there was a heavy odor of "some sort of intoxicating beverage." Krolick was glassy-eyed and with a scowl on his visage. He spoke to Krolick and, in his opinion, confirmed his belief. Chief Kane telephoned Chief McElroy who came to the scene with Battalion Chief Curley. Chief McElroy also had the impression that Krolick was under the influence of intoxicating beverages and he requested Chief Curley to return Krolick to No. 220. This was done. Later a medical officer arrived in response to a telephone call. He directed Krolick to take certain tests which Krolick handled satisfactorily. The officer believed he detected a slight odor of alcohol and thought Krolick was "a little unsteady on his feet", so he requested that Krolick submit to a blood alcohol test. Krolick refused because his UFA delegate had so instructed him. Krolick also refused direct orders from his supervisors to submit to the test. Krolick did state that many hours before reporting for work he had a few beers with his luncheon.

Subsequently charges of intoxication and disobedience to orders were preferred against Krolick. Krolick was found not guilty on the charge of intoxication, but found guilty of disobedience to orders (Regulations, ยง 25.1.1) and fined 10 days' pay. In this article 78 proceeding Krolick seeks to annul such determination.

On this appeal Krolick and Vyse each urge (1) reasonable grounds were lacking to believe either was intoxicated; (2) the order and requirement to submit to blood sampling was contrary to New York's public policy, and in violation of petitioners' constitutional immunities against unreasonable search and seizure, and of due process guaranteed by Federal and State Constitutions; (3) the finding by the Commissioner that each petitioner was guilty of the charge of disobeying an order may not be tolerated as an administrative decision and disposition. Rather it was a device for inflicting punishment for each petitioner's refusal to submit to an illegal demand that he submit to an intrusion upon his ...


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