SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 2, 1969
IN THE MATTER OF JAMES T. KELLEHER ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED AS SENIOR BUSINESS OFFICERS OR BUSINESS OFFICERS IN THE STATE OF NEW YORK, DEPARTMENT OF MENTAL HYGIENE, RESPONDENTS,
ERSA H. POSTON, AS PRESIDENT OF THE CIVIL SERVICE COMMISSION OF THE STATE OF NEW YORK, ET AL., APPELLANTS
Concur -- Eager, J. P., Capozzoli, Tilzer, Nunez and McNally, JJ.
Order entered September 2, 1969, in this article 78 proceeding, granting petitioners' motion for a stay, unanimously modified on the law, the facts and in the exercise of discretion, to the extent of deleting therefrom the following language "and as to any such appointments heretofore made, respondents, and each of them, and their agents, employees, representatives and directors, and all those acting under respondents, are stayed, enjoined and restrained from permitting any such appointees to commence their assigned duties to be effective on or about September 4, 1969", and otherwise affirmed, without costs or disbursements. Respondents have expressed their willingness to refrain from making future appointments pendente lite and, accordingly, the only appointments presently in issue are those which were made prior to the commencement of this proceeding and which were to become effective on or about September 4, 1969. Petitioners were required to, and failed to, demonstrate that they would be irreparably injured or substantially damaged if said appointments become effective. (Matter of Wheeler v. Hoffman, 23 A.D.2d 800
, 801; Green Co. v. Industrial Development, 8 A.D.2d 785
, 786.) Moreover, the appointees who are affected by the relief granted at Special Term were not made parties to this proceeding. (Matter of Marcus v. Kaplan, 20 A.D.2d 841.)
Settle order on notice.
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