McALLAN v. MARCOS (1999)

Order, Supreme Court, New York County (Marylin Diamond, J.), entered November 24, 1997, which granted defendants' motion for dismissal of the complaint, unanimously modified, on the law, insofar as to declare that Local Laws, 1996, No. 20 of the City of New York, to the extent challenged herein, was validly enacted, and otherwise affirmed, without costs.

Contrary to plaintiffs' contention, the subject enabling statute (McKinney's Uncons Laws of N.Y. § 7385[9] ) [New York City Health & Hospitals Corporation Act § 5(9);  L.1969, ch. 1016, § 1] does not mandate maintenance of ambulance services by the Health and Hospitals Corporation itself (cf., Council of City of New York v. Giuliani, 93 N.Y.2d 60, 687 N.Y.S.2d 609, 710 N.E.2d 255).   The mere authorization in the statute for the corporation's provision of such services is not tantamount to the mandate that plaintiffs would have us find (see, Matter of Hamburg v. McBarnette, 83 N.Y.2d 726, 733, 613 N.Y.S.2d 355, 635 N.E.2d 1225).   Accordingly, the contested transfer of ambulance services from the Health and Hospitals Corporation to the New York City Fire Department was not accomplished in violation of that statute and did not require an amendment thereof.   We modify only to declare explicitly what is implied by Supreme Court's disposition (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).   We have considered plaintiffs' remaining arguments and find them to be unavailing.

MEMORANDUM DECISION.