Kounas v. Abate — 222 A.D.2d 315

Majority

p. 315

In the Matter of Adam Kounas et al., Appellants, v Catherine Abate, as Correction Commissioner of the City of New York, et al., Respondents.

[635 NYS2d 585]

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered June 21, 1994, which denied petitioners’ application pursuant to CPLR article 78 to compel respondents to transfer petitioners to a command of their choice in accordance with a negotiated plea agreement entered into by the parties in settlement of a disciplinary proceeding, unanimously affirmed, without costs.

Respondents’ refusal to implement petitioners’ transfer requests was not a violation of the plea agreement. That agreement did not give petitioners the absolute power to dictate their assignment, but rather left final approval thereof with the Division Chief, who took the position that the Department’s staffing needs required that petitioners be assigned to a jail facility, not the specialty units they sought. Given final authority in the Chief, any failure by the Deputy Commissioner to "recommend to the * * * Chief that [petitioners] be accom

p. 316

modated at one of the three selected commands”, as required by the plea agreement, could not have caused petitioners any harm. Concur — Sullivan, J. P., Ellerin, Wallach and Rubin, JJ.