dissent and vote to affirm in the following memorandum by Sweeney, J. P. Sweeney, J. P. (dissenting). We are unable to agree with the result reached by the majority and, therefore, dissent and vote to affirm. The pertinent language of subdivision 2 of section 840 of the Executive Law provides that respondent "shall promulgate” regulations *715prescribing certain physical requirements for police officers "as it deems necessary and proper for the efficient performance of police duties”. A fair reading of this statute in its entirety compels us to conclude that the Legislature intended that respondent have discretionary authority to establish physical standards and not be mandated to do so as argued by appellants and held by the majority. The fact that the word "shall” is used does not necessitate a contrary conclusion (McKinney’s Cons Laws of NY, Book 1, Statutes, § 177; Matter of Ehrenberg v Persons, 8 AD2d 18). To construe this statute as mandating respondent to establish a height requirement would render the phrase "as it deems necessary and proper” superfluous and meaningless and such conclusion should not be reached unless it is inevitable (Direen Operating Corp. v State Tax Comm., 46 AD2d 191). Although the instant article 78 proceeding is appropriate to compel the performance of a statutory duty that is ministerial in nature, it is not appropriate where an officer may exercise discretion unless such discretion has been abused by arbitrary or illegal action (Matter of Stutzman v Fahey, 62 AD2d 1070; Board of Educ. v Levitt, 42 AD2d 372). Having determined that respondent has discretionary authority to establish a height requirement, we must now decide whether or not respondent has abused its discretion by arbitrary or illegal action. The record reveals that respondent has some doubt as to which specific height requirement would accurately measure an attribute relevant to the performance of police duties. Furthermore, in view of title 7 of the Civil Rights Act of 1964 (US Code, tit 42, § 2000e et seq.) and section 296 of the Executive Law, respondent was uncertain as to the propriety of a height requirement. Consequently, instead of promulgating a questionable standard, respondent instituted a five-year study, which action we are unable to conclude on this record as arbitrary. Respondent, in our opinion, has not abused its discretion by arbitrary or illegal action and, consequently, the petition was properly dismissed. The judgment should be affirmed. [96 Misc 2d 315.]