Richards v. Board of Fire Commissioners

In a proceeding pursuant to CPLR article 78 to review so much of a determination of the Board of Fire Commissioners of the Brentwood Fire District, dated February 28, 2011, as expelled the petitioner from the Brentwood Fire Department, the Board of Fire Commissioners of the Brentwood Fire District, the Brentwood Fire Commissioners, and the Brentwood Fire Department appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated June 13, 2012, which granted the petition to the extent of annulling the determination and remitting the matter for a hearing and a new determination thereafter, and the petitioner cross-appeals from so much of the order as failed to grant the petition in its entirety. Ordered that on the Court’s own motion, the notice of appeal and the notice of cross appeal from the order are deemed to be applications for leave to appeal, and cross-appeal, respectively, and leave to appeal and cross-appeal is granted (see CPLR 5701 [c]); and it is further, [837] Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. Since the petitioner was entitled to a hearing upon due notice and upon stated charges under General Municipal Law § 209-1 (see Matter of Pawlowski v Big Tree Volunteer Firemen’s Co., Inc., 12 AD3d 1030 [2004]; Matter of Lotten v Board of Fire Commrs. of Terryville Fire Dist., 262 AD2d 563 [1999]; compare Matter of Armstrong v Centerville Fire Co., 83 NY2d 937 [1994]; Leahy v Jordan, 207 AD2d 385 [1994]; Matter of Ferrara v Magee Volunteer Fire Dept., 191 AD2d 967 [1993]), but was not afforded one, the Supreme Court properly annulled the determination and remitted the matter for a hearing and a new determination thereafter (see Matter of Pawlowski v Big Tree Volunteer Firemen’s Co., Inc., 12 AD3d at 1032). The parties’ remaining contentions are without merit. Dillon, J.E, Chambers, Austin and Duffy, JJ., concur.