Opinion
May 28, 1964
Richard E. Powell for petitioners.
Herbert J. Heimerl, Jr., for respondents.
Respondents, in rearguing the motion to dismiss the petition for legal insufficiency because petitioners have not been suspended without pay for a period exceeding 10 days, cite Matter of Winn v. Department of Hospitals of City of N.Y., decided by the First Judicial Department (April 2, 1964, N YL.J., April 3, 1964, p. 12, col. 2, 20 A.D.2d 856) and first reported six days before this court's decision, denying said motion.
The Winn case denies judicial authority to review such matters, but buttresses its decision by considering the merits.
The doctrine of stare decisis compels Special Term to follow a decision of the Appellate Division of another department, where neither its own Appellate Division nor the Court of Appeals holds otherwise. ( Hamlin v. Bender, 92 Misc. 16, affd. 173 App. Div. 996; Maass v. Rosenthal, 62 Misc. 350, affd. 132 App. Div. 902; United States Gypsum Co. v. Riley-Stoker Corp., 11 Misc.2d 572, affd. on other grounds 7 A.D.2d 894, revd. on other grounds 6 N.Y.2d 188; People v. Welt, 19 Misc.2d 462, 8 N.Y.2d 961. )
This memorandum should be read with this court's opinion herein, dated April 9, 1964 ( 42 Misc.2d 505), which expresses this court's preferred ruling.
The Winn case is obediently though reluctantly followed and the motion to dismiss is granted, without costs.
Prepare and submit order granting reargument and dismissing accordingly.