In re Appl. of Allen v. N.Y.C. D.O.C.

Full title: IN THE MATTER OF THE APPLICATION OF EDWARD ALLEN, Petitioner, FOR A…

Court: Supreme Court of the State of New York, New York County

Date published: Jul 24, 2009

2009 N.Y. Slip Op. 31676 (N.Y. Sup. Ct. 2009)

Opinion

116150/08.

July 24, 2009.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MARILYN SHAFER, Judge.

The following papers, numbered 1 to 7, were read on this petition:

PAPERS NUMBERED Notice of Petition, Verified Petition — Exhibits 1,2 Memorandum of Law 3 Notice of Cross-Motion 4 Memorandum of Law 5 Memorandum of Law in Opposition 6 Reply Affirmation 7

Cross-Motion: [] Yes [] No Upon the foregoing papers, the petition is dismissed.

Introduction

This Article 78 petition challenges the refusal by defendant Department of Corrections to select petitioner, Edward Allen, from the eligibility list for the position of Corrections Officer.

Background

The petitioner has taken the civil service examination for appointment to the title of Correction Officer three times. This Article 78 arises out of his third examination.

The first time petitioner took the examination he was disqualified on psychological grounds, which finding was sustained on appeal.

The second time petitioner took the examination he was found qualified and hired. He resigned approximately six months later to seek other employment.

Petitioner re-applied to the DOC under the second examination and was found to be psychologically unfit by the same doctor who had previously found him fit. On appeal, the disqualification was rescinded but the examination had expired.

Petitioner took the examination a third time and was found to be psychologically unfit. On appeal, the disqualification was rescinded and petitioner was placed on the eligible list. He was considered for appointment three times but not selected. This Article 78 proceeding seeks to annul the determination not to select him.

Discussion

"It is well settled that judicial review in an Article 78 proceeding is limited to a determination of whether the administrative action complained of is arbitrary and capricious, or lacks a rational basis" ( In re Application of Chelrae Estates, Inc. v State Division of Housing and Community Renewal, Office of Rent Administration, 225 AD2d 387, 389 [1^st Dept. 1996]). In Pell v Board of Education of Union Free School District, the Court of Appeals defined arbitrary and capricious action as "action without sound basis in reason and generally taken without regard to the facts" ( Pell v Board of Education of Union Free School District, 34 NY2d 222, 231

The law is well settled that appointment or promotion from an eligible list is within the discretion of the appointing authority. ( Delicati v Schechter, 3 AD2d 19 [1^st Dept 1958]["An appointing officer, under the existing civil service system, has a non-reviewable discretion to make appointments, otherwise within his capacity, from among eligibles who are certified to him by the civil service commission])

Under New York Civil Service Law, an examination for appointment to a competitive class title results in a rank order eligible list of candidates who are eligible for appointment. ( Civil Service Law § 56) In the City of New York, the Department of Citywide Administrative Services administers the civil service system, including the testing of candidates, the creation of eligible lists, and the certification of names from that eligible list. ( City of New York v Civ Serv Comm, 6 NY3d 855) The appointing authority is entitled to at least three names for each vacancy and an eligible list is considered "exhausted" if there are insufficient names to provide at least three candidates to fill a vacancy. A candidate on an eligible list has nothing more than an expectation that he or she will be considered for appointment. ( Deas v Levitt, 73 NY2d 525)

Once a candidate has been certified for appointment from the eligible list, the appointing authority, acting with discretion pursuant to the New York Civil Service Law, selects one of the three individuals certified as ranking highest on the competitive examination. ( Civil Service Law § 61(1) This is commonly referred to as the "one in three" rule.

Petitioner acknowledges that decisions pursuant to the "one and three" rule, such as the one complained of here, are unreviewable. His conclusory allegations of his suspicions as to a hidden agenda behind the decision are an insufficient basis for this Court to review a discretionary and non-reviewable administrative decision.

Accordingly, it is hereby

ORDERED that the petition is dismissed.

This reflects the decision and order of this Court.