Ittig v. Huntington Manor Volunteer Fire Dept., Inc.

• Decision Date: 20 June 1983
• Citation: 95 A.D.2d 829,463 N.Y.S.2d 870
• Parties: In the Matter of Kenneth C. ITTIG, III, Petitioner, v. HUNTINGTON MANOR VOLUNTEER FIRE DEPARTMENT, INC. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 870

463 N.Y.S.2d 870

95 A.D.2d 829

In the Matter of Kenneth C. ITTIG, III, Petitioner, v. HUNTINGTON MANOR VOLUNTEER FIRE DEPARTMENT, INC. et al., Respondents.

Supreme Court, Appellate Division Second Department.

June 20, 1983.

Root, Roberts & Byrne, P.C., Huntington (James J. Byrne, Huntington, of counsel), for petitioner.

Corwin & Matthews, Huntington (Charles T. Matthews, Huntington, of counsel), for respondents.

Before LAZER, J.P., and MANGANO, GULOTTA and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of the Board of Fire Commissioners of the Huntington Manor Fire District, dated April 20, 1982, which, after a hearing, removed petitioner from the membership rolls of the Huntington Manor Volunteer Fire Department, Inc.

Petition granted, determination annulled, on the law, without costs or disbursements, and respondents are directed to reinstate petitioner as a member of the Huntington Manor Volunteer Fire Department, Inc.

The determination to expel petitioner, a volunteer fireman, from the membership rolls of the Huntington Manor Volunteer Fire Department, Inc., for reasons of gross misconduct and insubordination was based on affirmative findings by the board of fire commissioners with respect to the following charges: (1) after being ordered by Chief Alan Bailey on December 14, 1981 to shave off his beard before responding to any further alarms, petitioner disobeyed said order by responding to the scene of an automobile fire on December 17, 1981; (2) after being instructed to attend a meeting with the officers of the Huntington Manor Volunteer Fire Department on Sunday, December 20, 1981, to explain his conduct as to the first charge, petitioner failed to appear or proffer a timely explanation as to why he could not attend the scheduled meeting; (3) after being placed on suspension by Chief Bailey on December 17, 1981, petitioner was observed on January 3, 1982 and on other dates at the Huntington Manor Fire Department Headquarters, utilizing the recreational facilities reserved for volunteer firemen not under suspension.

Based on this record, the affirmative findings of the board of fire commissioners is not supported by substantial evidence.

Although rules and regulations setting forth standards as to the haircuts, sideburns, mustaches, and beards of firemen and policemen are constitutionally valid (Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708; Matter of Greenwald v. Frank, 40 A.D.2d 717, 337 N.Y.S.2d 225, affd. 32 N.Y.2d 862, 346 N.Y.S.2d 529, 299 N.E.2d 895; Olszewski v. Council of Hempstead Fire Dept., 70 Misc.2d 603, 334 N.Y.S.2d 504, revd. on other grounds 41 A.D.2d 968, 344 N.Y.S.2d 992), there is no evidence in the record that the board adopted a rule, regulation or by-law prohibiting beards (Town Law, § 176, subd. 11; Matter of Thompson v. Board of Fire Commrs., 64 Misc.2d 477, 315 N.Y.S.2d 480). Consequently, Chief Bailey's order to petitioner to shave off his beard before responding to any more fire alarms was not binding on petitioner (see Matter of Thompson v. Board of Fire Commrs., 64 Misc.2d 479, 315 N.Y.S.2d 480).

Moreover, aside from petitioner's mere presence at the scene of an automobile fire on December 17, 1981, there was no evidence...