McMorrow v. Rozzi

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Police Department of the County of Nassau, dated December 14, 1987, denying a request by a member of the petitioner Patrolmen’s Benevolent Association of the Police Department of the County of Nassau, Inc., for permission to engage in off-duty employment as a security guard.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

We note that the proceeding was improperly transferred since, absent a hearing, no issue arises as to the question of substantial evidence (CPLR 7804 [g]). Nevertheless, we treat *640the merits (see, Matter of Portugal v Webb, 91 AD2d 997), and dismiss the petition which is in the nature of mandamus to review because the Commissioner’s denial of a request by a police officer to engage in off-duty security-related employment was within the proper exercise of his discretion and based upon cogent reasons. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.