Buchanan v. Chief of Police

— In a proceeding pursuant to CPLR article 78, inter alia, to compel the removal of petitioner from the chronic sick list, petitioner appeals from a judgment of the Supreme Court, Westchester County (Cerrato, J.), dated November 25, 1980, which dismissed the petition. Judgment affirmed, without costs or disbursements. Petitioner is a police officer in the Town of Greenburgh. His conduct is governed by the rules and regulations of the police department. Pursuant to rule 5.3.7.1 thereof, petitioner was placed on the chronic sick list, upon a determination that he had “more than seven (7) one-day illnesses or five (5) two-day illnesses a year or a combination amounting to ten (10) days per year”. Rule 5.3.7.2 provides that an officer whose name appears on the list will not be permitted to have mutuals, i.e., shift switches with other officers, and will receive low priority for requested holidays. Petitioner does not dispute the absences which brought him within the purview of the rule. Furthermore, in his brief, he affirms that the rule is a valid one. Under these circumstances, respondent’s placement of petitioner on the chronic sick list constituted a purely ministerial implementation of a valid rule. As a consequence, the instant proceeding does not lie and Special Term was correct in dismissing the petition. We note further that no action has been taken by respondent with respect to petitioner’s off-duty employment, and there is no determination concerning it to be reviewed in this article 78 proceeding. Damiani, J. P., Titone, Lazer and Gibbons, JJ., concur.