Opinion
108139/09.
March 1, 2010.
London Worth, LLP, New York, NY, for Petitioner.
Michael A. Cardozo, Corporation Counsel, New York, NY, for Respondents.
DECISION AND ORDER
Papers considered in review of this cross-motion to dismiss:
Notice of Petition .................. 1 Notice of Amended Petition .......... 2 Notice of Cross-Motion .............. 3 Mem. of Law in Support .............. 4 Mem. Of Law Opp ..................... 5 Reply Mem. of Law ................... 6Petitioner Timothy P. Schultz ("Schultz") commenced this Article 78 proceeding on or about June 8, 2009, seeking to annul an NYPD decision denying Schultz a promotion to the title of Sergeant. Schultz also seeks an award of back pay and retroactive seniority. On July 6, 2009, Schultz filed an amended petition, in which he alleges that the NYPD's decision not to promote him was arbitrary and in bad faith. Respondents Raymond W. Kelly ("Kelly"), the Police Department of New York ("NYPD") and the City of New York (the "City") (collectively the "City respondents") cross-move to dismiss the petition pursuant to CPLR 3211(a)(7) for failure to state a cause of action, arguing that the NYPD cannot promote Schultz because the eligibility list on which he appears has expired.
Schultz is currently a police officer employed with the NYPD. On or about February 3, 2007, Schultz took and passed Examination No. 6513 to be eligible for promotion to Sergeant. Several months prior to the examination, Schultz was involved in the apprehension and arrest of an individual who accused him of using excessive force during that arrest. The arrested individual filed a complaint with the Civilian Complaint Review Board ("CCRB"), which was partially substantiated. After conducting its own investigation, NYPD's Internal Affairs Bureau ("IAB") found the allegations to be unsubstantiated. Nevertheless, the NYPD Department Advocate's Office issued disciplinary charges against Schultz.
The arrested individual also filed a Notice of Claim and a federal lawsuit against, inter alia, the NYPD and Schultz. Schultz claims that the NYPD Department Advocate's Office offered him the opportunity to plead guilty to the charges. According to Schultz, he refused the plea because he believed he was innocent. Moreover, he was concerned that a guilty plea could result in the Office of Corporation Counsel declining to represent or indemnify him in the federal lawsuit.
On or about January 15 and January 27, 2009, the NYPD conducted Schultz's departmental trial. Before the NYPD reached a final decision on that charge, Schultz received a letter from the NYPD's Employee Management Division stating that the NYPD had not selected him for promotion to Sergeant. The letter did not specify the reason for the denial. Schultz claims that he contacted the NYPD by telephone and that an unidentified representative told him that the NYPD had denied Schultz the promotion because of the pending departmental disciplinary charges against him.
Schultz's promotion eligibility list expired on March 27, 2009. Then, on April 28, 2009, the NYPD Deputy Commission of Trials found Schultz not guilty on all disciplinary charges against him.
In his petition, Schultz asserts that the NYPD acted arbitrarily, capriciously and in bad faith by denying him the promotion to Sergeant. Schultz further argues that because the NYPD acted arbitrarily, the Court should annul the NYPD's decision and order Schultz's promotion despite the expired eligibility list.
The City defendants argue that Schultz's petition must be dismissed because he: (1) failed to commence the proceeding prior to his eligibility list's expiration, and (2) is not challenging the validity of the expired list. In opposition, Schultz argues that the Court of Appeals has created an exception allowing for appointments from expired lists where the defendant has acted arbitrarily or in bad faith.
Discussion
On a defendant's motion to dismiss an Article 78 proceeding pursuant to CPLR 3211(a), the standard of review "is whether the agency determination was arbitrary and capricious or affected by an error of law." Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 759 (1991). To show arbitrary or bad faith actions, the petitioner "bears a heavy burden of proof" that must go beyond "conclusory allegations and speculative assertions." Gomez v. Hernandez, 50 A.D.3d 404, 404 (1st Dep't 2008).
Appointment of civil service applicants can not be made from a constitutionally valid but expired eligibility list. City of New York v. New York State Div. of Human Rights, 93 N.Y.2d 768, 774 (1999). If an eligibility list has expired, an applicant must bring a proceeding challenging the validity of the list before it expires to be eligible for placement on a special eligibility list. Matter of Deas v. Levitt, 73 N.Y.2d 525, 527 (1989).
Even where an administration's discriminatory conduct caused delays that led to the list's expiration, a court can not create a "special eligible" list unless the applicant brought a proceeding challenging the list's validity prior to its expiration. See New York State Div. of Human Rights, 93 N.Y.2d at 874-75 (holding that the state could not create special eligibility lists for individuals whose eligibility expired because of discriminatory conduct by public agencies). If "the nature of the claim" is merely that "an applicant for a job was wrongly ruled ineligible" for appointment, then the Court may not create a "special eligible list" from an expired list. New York Div. of Human Rights, 93 N.Y.2d at 784.
In Matter of Deas v. Levitt, the New York City Department of Personnel delayed petitioner's civil certification because the Department found him to be medically unqualified. Deas, 73 N.Y.2d at 528. The Civil Service Commission later reversed the Department of Personnel's decision, but this reversal came after the expiration of the eligibility list on which the petitioner appeared. Deas, 73 N.Y.2d at 528-29. Despite the Department of Personnel's error, the court overruled the Appellate Division decision creating a special eligibility list for the petitioner. Deas, N.Y.2d at 535-36. In its decision, the Court of Appeals affirmed that appointment from an expired eligibility list is a "legal impossibility," Deas, N.Y.2d at 529 (quoting Matter of Cash v. Bates, 301 N.Y. 258, 261 (1950)), and denied relief to the petitioner because he failed to attack the constitutional validity of the list prior to its expiration.
Here, Schultz did not bring a proceeding challenging the validity of his list prior to the expiration date. Instead, Schultz argues that he was improperly ruled ineligible for promotion on account of the departmental disciplinary charges pending against him. Schultz argues that the Court of Appeals in Deas carved out an exception to the prohibition against creating a special eligibility list from an expired list for cases where the state acted arbitrarily or in bad faith. Schultz bases his argument on a footnote in Deas noting that the petitioner in that case did not allege any bad faith or arbitrary actions by the Department of Personnel. Deas, 73 N.Y.2d at 533 fn. 1. Schultz also argues that the NYPD's actions were arbitrary and capricious and that the Court should therefore annul the NYPD's decision not to promote him.
Notwithstanding its footnote, in Matter of Deas v. Levitt, the Court of Appeals plainly held that "appointment of an individual from a constitutionally valid expired list violates article V, § 6 of the N.Y. Constitution." Deas, 73 N.Y.2d at 531. Later, in City of New York v. New York State Division of Human Rights, the Court of Appeals made clear that a court may not revive an expired civil service eligibility list and place an aggrieved applicant on that revived "special eligible" list even in those cases where (as Schultz alleges here) the applicant was "wrongly ruled ineligible." New York State Div. of Human Rights, 83 N.Y.2d at 874. Because Schultz has not attacked the validity of the expired Sergeant promotional eligibility list itself, but simply disputes the determination not to promote him, this Court may not revive the list and place Schultz back on it for reconsideration.
In any event, Schultz fails to plead facts to show that the NYPD's actions were arbitrary or in bad faith. "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974). Schultz's notification from the NYPD states only that "you were considered and not selected for appointment or promotion to a vacancy in the subject title. Another candidate was selected instead." Schultz claims that an unidentified representative orally informed him that the decision was based on his pending departmental disciplinary charges, but no other authority at the NYPD substantiated this claim. Schultz's claim that an unnamed individual orally advised him of the reasons for the denial is insufficient to raise an issue of fact for trial. See Kaminsky v. Leary, 33 A.D.2d 552, 552 (1st Dep't 1969) (stating that an allegation that an unidentified officer advised the petitioner that the denial of his civil service application resulted from the arrest records of petitioner's brother did not raise an issue of fact); see also Gomez, 50 A.D.3d at 404 ("[t]he failure to provide particular reasons for an appointing official's exercise of discretion in declining to appoint a specific candidate is not evidence of arbitrariness or capriciousness.").
Further, denying a promotion based on pending disciplinary charges is not an arbitrary or bad faith action. It was not necessary that the NYPD have proof of Schultz's misconduct. See Maynard v. Monaghan, 284 A.D. 280, 283 (1st Dep't. 1954) (stating that the police commissioner's decision to discharge petitioner from the police force did not require "proof sufficient to convict the appointee of subversion or show his guilt of other misconduct beyond a reasonable doubt" but "merely require[d] that the appointing officer exercise his discretion in good faith upon evidence that would satisfy a reasonably prudent police commissioner that the applicant's record is unsatisfactory"). The CCRB had partially substantiated the complaint against Schultz. Though the IAB found the claim unsubstantiated, the IAB never officially exonerated Schultz. "Even a person receiving the highest mark on a promotional examination has only "the right to consideration for and a 'hope' of appointment." Archer v. Ricio, 201 A.D.2d 395, 607 (1st Dep't. 1994) (citing Matter of Cassidy v Municipal Civ. Serv. Commn., 37 N.Y.2d 526, 529 (1975)). Thus, even if it were possible to appoint Schultz from an expired eligibility list, the NYPD's actions here were neither arbitrary or in bad faith.
In accordance with the foregoing, it is
ORDERED that the cross-motion to dismiss by respondents Raymond W. Kelly, The Police Department of the City of New York and The City of New York is granted, the petition is dismissed, and the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the decision, order and judgment of the Court.