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December 22, 1977


The opinion of the court was delivered by: CONNER


This is a civil rights action for injunctive and declaratory relief brought pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1343 and 28 U.S.C. § 2201, inter alia. Plaintiff, formerly a Correction Officer employed by the New York City Department of Correction, contends that he had achieved tenure in his position as a Correction Officer and that he was summarily dismissed without a hearing from his position in violation of his right to equal protection and procedural due process under the Fifth and Fourteenth Amendments. Presently before the Court are plaintiff's motion and defendants' cross-motion for summary judgment. F.R.Civ.P. 56.

 Plaintiff, a discharged veteran, successfully competed in an open examination for the position of Correction Officer. In order to advance his position on the eligible list generated by the examination, plaintiff claimed veteran's preference credits pursuant to New York Constitution, Art. 5, § 6, and New York Civil Service Law § 85, which provide that certain additional credit may be added to the score of a veteran in the competitive examination. On the basis of his adjusted score, plaintiff was appointed to the position of Correction Officer on January 24, 1974; it is conceded that plaintiff would not have been reached for appointment without the use of these credits. On July 24, 1974, plaintiff satisfactorily completed the required six-month probationary period.

 New York Law prohibits a person from using veteran's credits more than once to secure a position with the Civil Service. New York Civil Service Law § 85; New York Constitution Art. 5, § 6. An investigation conducted subsequent to plaintiff's appointment revealed that he had previously used his veteran's credits to obtain a position as a Railroad Clerk with the New York City Transit Authority -- a position from which he resigned in order to assume his position as a Correction Officer. Accordingly, on December 5, 1975, plaintiff was summarily dismissed from his position as a Correction Officer, without a hearing, and merely upon notice that he had previously used veteran's credits to obtain another position. Plaintiff appealed his termination to the City Civil Service Commission on December 3, 1975, which appeal was denied on February 18, 1976. This action followed.

 Both parties agree that the issue before this Court is whether plaintiff has acquired a sufficient expectancy of continued employment to constitute a property interest protected by the Due Process Clause of the Fourteenth Amendment, and that the sufficiency of plaintiff's claim of entitlement must be decided by reference to state law. Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976); Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Berns v. Civil Service Commission, 537 F.2d 714 (2d Cir. 1976).

 Under New York Law, a permanent employee may not be removed "except for incompetency or misconduct shown after a hearing upon stated charges * * *" New York Civil Service Law § 75(1)(a). Section 50(4) of the Civil Service Law, however, provides that

"Notwithstanding the provisions of this subdivision [stating grounds for disqualification of applicants or eligibles] or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided however, that no such certification shall be revoked or appointment terminated more [no later] than three years after it is made, except in the case of fraud."

 Plaintiff relies on a line of New York cases limiting the power of a civil service commission under § 50(4) to revoke the appointment of an employee who has satisfactorily completed the required probationary period.

 In Canarelli v. New York State Department of Civil Service, 44 A.D.2d 645, 353 N.Y.S.2d 275 (4th Department 1974), the court held that where an applicant is appointed on the basis of error made by the Civil Service Commission "in matters which it alone had power and jurisdiction to determine, e.g., misgrading a test or incorrectly interpreting accurately furnished information on an application, the appointee may not be removed after his appointment has become permanent * * *." At 278. In that case the employee was summarily dismissed for failure to complete a two-term geometry course. The court ordered the Department of Civil Service to hold a hearing to permit the employee to present evidence that the college course he took was the equivalent of that required.

 Similarly, in Kelliher v. New York State Civil Service Commission, 21 Misc. 2d 1034, 194 N.Y.S.2d 89 (Sup.Ct. Orange Co. 1959), a case in which a county civil service commission revoked the appointment of a patrolman to police sergeant upon its finding that the patrolman should not have been given a passing mark on the examination because of an incorrect answer to one question, the court held:

"notwithstanding the provisions of * * * Section 50 conferring upon the Commission the power to take such action, there must exist substantial grounds to justify the exercise of the power particularly where, as here, there is no question of fraud or bad faith. If error or mere irregularity in proceedings leading to the certification of the employee is the alleged ground for action, the error or irregularity must be 'of a substantial nature', that is, relating to a matter bearing substantially upon the basic qualifications of the individual or upon the purposes and effectiveness of the civil service system."

 In determining whether the dismissal of a civil service employee without a hearing on the basis of a post-appointment investigation violates the due process clause, federal courts have looked to these and other New York cases construing the effect of § 50(4) on the rights a permanent employee would otherwise enjoy under § 75; they have held that where New York courts would prohibit summary dismissal under § 50(4), an employee possesses an enforceable expectation of continued employment and therefore has a constitutional right to a pretermination hearing. Berns v. Civil Service Commission, supra (equivalent education); Hewitt v. D'Ambrose, 418 F. Supp. 966 (S.D.N.Y. 1976) (age requirement); Vega v. Civil Service Commission, 385 F. Supp. 1376 (S.D.N.Y. 1974), vacated as moot, Docket No. 75-7007 (2d Cir. 1975) (age requirement).

 Defendants argue, however, that New York law does not prohibit summary dismissal under § 50(4) in the case of an improper application for veteran's preference credits and that plaintiff therefore has no property interest in his employment and no constitutional right to a pretermination hearing.

 As defendants point out, the state and federal cases cited by plaintiff involved the termination of an employee for failure to meet a requirement for appointment established solely by the rules of the Civil Service Commission, or because of ministerial error in grading an examination. Under New York law, however, an employee has no expectation of continued employment where he fails to comply with requirements for appointment to office defined by statute or ordinance as opposed to Civil Service Commission rule or regulation. In Wolff v. Hodson, 285 N.Y. 197, 33 N.E.2d 90 ...

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