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MATTER OF FONTONE v. LOWERY

30 N.Y.2d 975 (1972)

In the Matter of James A. Fontone, Appellant, v. Robert O. Lowery, as Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York Fire Department Pension Fund, et al., Respondents.

Court of Appeals of the State of New York.

Decided July 7, 1972.

Attorney(s) appearing for the Case

Murray A. Gordon, P. C., for appellant.

J. Lee Rankin, Corporation Counsel (Beatrice Rothman and Stanley Buchsbaum of counsel), for respondents.

Concur: Chief Judge FULD and Judges BURKE, BREITEL, JASEN and GIBSON. Judge BERGAN dissents and votes to reverse in the following opinion in which Judge SCILEPPI concurs.

Order affirmed, without costs, on the opinion at the Appellate Division.

BERGAN, J. (dissenting).

Petitioner was a lieutenant in the New York City Fire Department. He was retired October 2, 1969 for "ordinary disability", i.e., a physical disability not service related. At this time he had served 17 years, 8 months and 16 days in the Fire Department. He had prior service for the City of New York, in the Sanitation Department, of 8 years, 6 months...

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