The opinion of the court was delivered by: POLLACK
Defendants move to dismiss the complaint pursuant to Rule 12(b)(6) Fed.R.Civ.P. for failure to state a claim upon which relief may be granted. Inasmuch as the defendants have submitted "matters outside the pleadings" along with their motion papers, their motion may be treated as one for summary judgment pursuant to Rule 12(b). Plaintiff, in turn, has filed a motion for summary judgment in his favor.
A Vietnam veteran and a former transit policeman for the City of New York, plaintiff claims that his due process and equal protection rights have been violated by the New York City Police Department's dismissal of him.
Plaintiff is an honorably discharged veteran who suffers from a 30 per cent disability as a result of injuries he received during the Vietnam War. In April of 1971, he took the competitive examinations for transit and regular policemen and received the passing grade of 90 per cent on each. He was appointed a transit patrolman on April 2, 1972, served his requisite one year probation and was subsequently appointed to a permanent position.
On September 27, 1974, he resigned from the transit police to take a position with the regular New York City Police Department. On June 30, 1975, he was terminated by the police department without notice of charges or a hearing.
This termination was not disciplinary, but was effected pursuant to New York Civil Service Law § 80(1), which provides, in relevant part, that
[notwithstanding] the provisions of this subdivision . . . upon the abolition or reduction of positions in the competitive class, incumbents holding the same or similar positions who have not completed their probationary service shall be suspended or demoted, as the case may be, before any permanent incumbents, and among such probationary employees the order of suspension or demotion shall be determined as if such employees were permanent incumbents.
The complaint in this action asserts that it was a breach of plaintiff's due process and equal protection rights for the New York City Police Department to treat plaintiff as a probationer when he had served as a transit department patrolman for much longer than the requisite one year probationary period.
It seeks a declaratory judgment that defendants have violated plaintiff's constitutional rights and that New York Civil Service Law § 63, New York City Administrative Code § 434a-8.0, and Civil Service Commission Rules and Regulations 5.2.1(a), 5.2.3, 5.2.4(a), 5.2.4(c), 5.2.6, 5.2.7., 5.2.9, E.24.3 and E.24.4 are unconstitutional.
The complaint also seeks damages of $50,000, counsel fees, orders directing defendants to reinstate plaintiff and recognize his prior service as a transit patrolman, and the convocation of a three-judge court.
However, in his motion papers and in argument in open Court plaintiff has withdrawn any direct attack on § 63 and his request for a three-judge court. Plaintiff's new theory is that, through the New York City Administrative Code section, the Civil Service Regulations and the acts of the police department, § 63 (which provides generally for probationary periods of civil service employment) has been unconstitutionally applied in this case.
In addition, the plaintiff's moving papers assert that the police department improperly failed to give plaintiff the sixty month additional seniority, or "preference," to which he was entitled as a disabled veteran under New York Civil Service Law § 85(7). While the complaint notes that plaintiff is a disabled veteran, it does not assert a violation of this statute or of the Constitution as a result of the breach of that statute.
Section 434a-8.0 of the Administrative Code of the City of New York provides that
(b) [preliminary] to a permanent appointment as patrolman there shall be a period of probation for such time as is fixed by the civil service rules, and permanent appointments shall only be made after the ...