
    In the Matter of Niagara Falls Fire Department Officers Association, by its President, William Woodcock, Jr., Respondent, v Richard Shiah, as Fire Chief of Niagara Falls Fire Department, et al., Appellants.
    [668 NYS2d 970]
   Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting the petition to enjoin the appointment of firefighters to the position of fire captain on a temporary basis and in declaring that such appointments contravened Civil Service Law § 61 (2) and NY Constitution, article V, § 6. The record presents factual issues whether the appointments were made lawfully pursuant to Civil Service Law § 64 (cf, Matter of Niagara Falls Fire Dept. Officers Assn, v Bowser, 145 AD2d 907), and that issue should not have been decided without a hearing (see, CPLR 7804 [h]). Thus, we remit the matter to Supreme Court for a hearing. (Appeal from Judgment of Supreme Court, Niagara County, Fahey, J. — CPLR art 78.)

Present — Green, J. P., Hayes, Callahan, Balio and Fallon, JJ.  