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December 3, 1974

JOHN VEGA, Plaintiff,
THE CIVIL SERVICE COMMISSION, CITY OF NEW YORK: HARRY I. BRONSTEIN, Personnel Director and Chairman, Department of Personnel, Civil Service Commission; BENJAMIN J. MALCOLM, Commissioner, Department of Correction, City of New York, and HARRISON J. GOLDIN, as Comptroller, City of New York, Defendants

The opinion of the court was delivered by: KNAPP



 This is a civil rights action, brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343, and other sections for injunctive and declaratory relief. Plaintiff, a Correction Officer formerly employed by the New York City Department of Correction, contends that he had achieved tenure in his position as Correction Officer, that he was summarily dismissed without a hearing from such tenured position, and that such summary dismissal violated his Fourteenth Amendment rights to procedural due process and equal protection. For these alleged constitutional violations, he seeks reinstatement to his position with back pay retroactive to the date of his discharge. The defendants do not deny that plaintiff's dismissal was summary and without a hearing. Since it cannot seriously be disputed that the summary dismissal of a public employee would violate the Fourteenth Amendment if such employee were tenured [Board of Regents v. Roth (1972) 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548; Perry v. Sindermann (1972) 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694], the sole question to be resolved is whether the plaintiff had tenure. That question being one of state law, it follows that our opinion will perforce concern itself exclusively with such law. *fn1"

 Although the underlying facts in this case are not in dispute, a brief recitation is in order.

 On May 25, 1972, defendant City Civil Service Commission ("Commission") announced an examination for the position of Correction Officer, Department of Correction, City of New York. Included in the announcement was the following provision concerning age:

"Applicants must have passed their twentieth birthday but not their thirty-second *fn2" birthday on the date of filing of their application for civil service examination (date of written test).
EXCEPTIONS: All persons who were engaged in military duty, as defined in Section 243 of the Military Law, subsequent to July 1, 1940, may deduct the length of time, not exceeding a total of six years, which they spent in military service, from their actual age in determining their eligibility".

 These age requirements are not fixed by statute, but by Commission regulation. Indeed, the Legislature conspicuously declined to fix minimum and maximum age requirements, deferring instead to local civil service commissions. Civil Service Law § 54 (McKinneys 1973). *fn3"

 Plaintiff was born June 29, 1936 and served three years in the U.S. Marine Corps. On the mistaken assumption that these facts rendered him eligible to take the examination, plaintiff on June 1, 1972 filed an application to compete in the examination. He truthfully answered all questions on the application form, including those relating to his age and length of military service. The examination was held on either July 13th or 15th, 1972. *fn4" Plaintiff took the examination, received a rating of 89%, and was placed on the Commission's eligible list. On June 11, 1973, plaintiff was appointed from the eligible list to the position of Probationary Correction Officer. On that same day he signed a form entitled "Terms and Conditions of Certification and Appointment (or Promotion)", in which he certified his understanding that his appointment was conditional, in that if he were, upon subsequent investigation, found to be not qualified, his appointment would be revoked and his employment terminated.

 In order to assume his new position, plaintiff was obliged to resign from a tenured position as a Special Officer with the Department of Social Services, thus forfeiting his seniority and any rights he may have had to compete in promotion examinations within that Department.

 In his new position as Correction Officer plaintiff was required to serve a probationary period of six months, which period expired on December 10, 1973. Eleven days after he had satisfactorily completed such probationary period, plaintiff was summarily dismissed from his position without charges and without a hearing, because he had been found "not qualified" due to "over age on the date of the written test". Plaintiff appealed the revocation of his certification within the Commission, but to no avail. After having exhausted his administrative remedies, he filed the present action, claiming that his retention by the Department of Correction beyond the expiration of the probationary period rendered him a tenured employee and that, as such, he had a "property right" to his position, of which he could not be deprived without charges and a hearing.

 Plaintiff has now moved for summary judgment on the ground that "there is no defense to this action and that no genuine issue exists as to any material fact". *fn5" Defendants have cross-moved for summary judgment and dismissal of the complaint on the ground that plaintiff's certification and appointment were expressly conditioned on his being found qualified in all respects. The subsequent revocation of that certification for over-age was, they argue, therefore lawful.

 In support of his motion for summary judgment, plaintiff takes two basic positions: (1) he was not in fact over age when he filed his application to compete in the examination, and (2) even if he were, the defendants are now estopped from so claiming in that he achieved tenure by being permitted to remain on his job beyond the probationary period.

 We reject as unfounded plaintiff's factual contention, and turn to his more substantial argument ...

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