Levine, J. (dissenting). Although we are in agreement with the majority that Supreme Court misread Civil Service Law § 73 in ruling that the petition is time barred, we are nonetheless convinced that the petition should be dismissed on the merits. There is no contested issue of fact that petitioner is presently physically unfit to perform the regular duties of a firefighter, that being the only position at all times held by him with the City of Albany Fire Department. Respondents made a determination that, therefore, he was unable to perform the duties of his former position within the meaning of Civil Service Law § 73. Unless respondents were irrational or arbitrary and capricious in taking this position, it should be beyond judicial review.
Petitioner has not shown that respondents acted arbitrarily or capriciously in rejecting his assertion that he has statutory reemployment rights in some functional, light duty assignment with the Fire Department. The courts have rejected employee claims to entitlements with respect to functional job assignments in other contexts. Thus, an employee reinstated pursuant to Civil Service Law § 73 may not compel reassignment to the very same duties performed before disability *16termination, provided that the new position carries the same salary, benefits and civil service level (see, Matter of Gibbone v Fire Dept., 123 AD2d 693, 694). Moreover, a dismissal from the functional position performed by a permanent civil service employee does not constitute a demotion for purposes of Civil Service Law § 75 so long as there is no adverse change in the employee’s grade or title in the position to which that employee was appointed (see, Matter of Galatti v County of Dutchess, 64 NY2d 1163, 1165). These principles support the rationality of respondents’ determination that petitioner’s "former position” within the meaning of Civil Service Law § 73 was that of firefighter, and that his statutory rights to reinstatement were contingent upon his ability to perform the regular duties of that position, despite the fact that his last functional assignment within that position was the performance of light duties.
We find nothing in the Court of Appeals decision in Matter of Prue v Hunt (78 NY2d 364) that would cast doubt on the foregoing analysis. Insofar as Matter of Prue has any relevance here, it would merely require that a disabled civil service employee such as petitioner be afforded a right to be heard administratively that he should be restored to a former light duty assignment, despite his unfitness to perform the regular duties of a firefighter. Matter of Prue (supra) should not be read to sanction judicial interference with governmental policy decisions regarding reemployment of disabled employees once due process requirements have been met at the administrative stage. The implication of the majority’s holding is that a court could order respondents to restore petitioner to employment based upon a factual determination that his prior light duty assignment had become a position within the meaning of Civil Service Law § 73. This, in our view, would constitute an impermissible invasion of the province of the governmental employer herein. Therefore, we would dismiss the petition on the merits.
Casey, J. P., and Mikoll, J., concur with Yesawich Jr., J.; Levine and Crew III, JJ., dissent in an opinion by Levine, J.
Ordered that the judgment is reversed, on the law, with costs, and motion denied, with leave to respondents to serve an answer within 10 days after the date of this court’s decision.