Opinion
July 19, 1990
Appeal from the Supreme Court, New York County (Charles E. Ramos, J.).
Although it has since been amended to permit inquiry regarding any arrest or criminal accusation, not then pending, which was terminated in favor of an applicant for employment as a police officer or peace officer (L 1985, ch 208), Executive Law § 296 (16), in effect at the time, prohibited such inquiry and there is substantial evidence in the record that the complainant's arrest record and petitioner's misconception that he had been convicted were the primary reasons for petitioner's nonselection of complainant for the position of correction officer. However, the civil service eligibility list in question expired almost one year prior to respondent's determination. In Matter of Deas v Levitt ( 73 N.Y.2d 525, cert denied ___ US ___, 110 S Ct 324), the court held that a civil service applicant cannot be hired from an expired list unless the applicant commences a judicial or administrative proceeding prior to the expiration of the list and also challenges the list itself. The complainant here has made no such challenge. There is also an insufficient basis for respondent's award of compensatory damages for hurt, humiliation and mental anguish, since there was no evidence supporting the complainant's claims of mental anguish other than his statement that he was very upset. (See, Matter of City of New York v. State Div. of Human Rights, 154 A.D.2d 56.) Finally, the cease and desist order should be annulled in light of the 1985 amendment to section 296 (16), which permits such inquiry of applicants for employment as peace officers, which includes correction officers (CPL 1.20; 2.10 [25]).
Concur — Kupferman, J.P., Sullivan, Rosenberger, Ellerin and Smith, JJ.