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Mancuso v. Koch

156 A.D.2d 209 Court N.Y. App. Div. Decision date 1989-12-12 English

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Nicholas Mancuso, Individually and as President of the Uniformed Firefighters Association, et al., Appellants, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents.

Order and judgment (one paper) of the Supreme Court, New York County (Herman Cahn, J.), entered on or about August 22, 1988, which granted respondents’ motion to dismiss a petition brought pursuant to CPLR article 78 to set aside a protocol on the ground that the issues raised are not justiciable, unanimously affirmed, without costs.

The protocol issued by the Mayor of the City of New York, ordering coordinated responses for four categories of emergen

p. 210
cies, concerns a matter of public safety and is nonjusticiable because it would "embroil the judiciary in the management and operation” of the New York City Police Department and Fire Department (McKechnie v New York City Tr. Police Dept., 130 AD2d 466 ). We find that the Mayor, in issuing the protocol which applies only to calls made to the 911 emergency number, acted within the lawful exercise of executive discretion which, in this instance, cannot be subject to judicial review (Matter of Ferrer v Quinones, 132 AD2d 277 ).

We also find the issue, raised for the first time on appeal, that the protocol effected a substantial shift in responsibilities from one agency to another so as to constitute a reorganization pursuant to section 11 of the New York City Charter to be patently without merit. The action here was not a reorganization which requires compliance with the procedural mandates of that section. Concur—Kupferman, J. P., Asch, Kassal, Wallach and Rubin, JJ.

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