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COLON v. CITY OF NEW YORK

March 24, 1982

Obed COLON, et al., Plaintiffs,
v.
CITY OF NEW YORK, et al., Defendants. Bruno J. SELISTE, Plaintiff, v. The CITY OF NEW YORK, Defendant. Glenn H. GNEISS, Plaintiff, v. The CITY OF NEW YORK, Defendant. Leroy JONES, Jr., Plaintiff, v. CITY OF NEW YORK, Commanding Officer, New York City Transit Police Dept., Applicant Investigation Unit, 346 Broadway, New York, New York, Defendants



The opinion of the court was delivered by: LEVAL

OPINION AND ORDER

These are actions brought under 42 U.S.C. § 1983 for declaratory, injunctive, and monetary relief. The common claims of these actions are that defendants have violated plaintiffs' rights under the equal protection clause of the Fourteenth Amendment, *fn1" and N.Y.Exec.Law § 291(1) *fn2" by refusing to hire them because of their age. At issue is the constitutionality of N.Y.Civ.Serv.Law § 58(1) *fn3" and N.Y. City Administrative Code § 434a-8.0(a). *fn4" The Colon action also alleges that its plaintiffs were discriminated against because of race due to defendant City's use of an invalid employment test in 1973. Plaintiffs in Colon move for summary judgment. Defendants in Colon, Seliste, and Gneiss cross-move for summary judgment. It is unclear whether defendants in Jones have been served. *fn5"

 Facts

 Colon v. City of New York :

 The facts in the Colon action are decidedly more complex than those in the other three actions. In January 1973, each of the Colon plaintiffs took and passed a written examination for appointment to the New York City Housing Authority Police Department. Plaintiffs allege and defendants do not contest that the minimum passing score was seventy and that all those who achieved such a score or higher were placed on an eligibility list in the order of their scores. Because the percentage of whites at the top of the list was higher than the percentage of Hispanics and blacks in those positions, a disproportionately high number of whites were appointed to positions as Housing Authority Patrolmen. There is disagreement among the parties on how many of the plaintiffs took and passed medical and other examinations between 1973 and 1979. What is undisputed is that during this period none of the plaintiffs was hired by defendant City. At the time of the written examination, the plaintiffs were of the following ages (birth dates are given parenthetically): Colon-25 (9/15/48); Fanara-25 (11/28/47); Gonzales-23 (1/18/50); Ramos-26 (11/18/46); Santiago-28 (8/2/45); and Soriano-28 (10/12/44). *fn6" Complaint P 11.

 This eligibility list was scheduled to terminate in August 1977, but was extended by the New York state legislature. In 1979, all the Colon plaintiffs were notified to appear to assist in a process of further investigation and examination. Although approximately thirty-eight candidates were appointed to the New York City Housing Authority Police Department, all of the plaintiffs were rejected because each was twenty-nine years of age or older. The parties do not agree on whether the plaintiffs were otherwise qualified at that time. *fn7"

 The Colon action was filed on March 19, 1980. An amended complaint was filed in August 1980 and answered in October 1980. *fn8" In July of the new year, motions were granted to substitute plaintiffs' counsel, to amend the complaint to include a second cause of action that seeks invalidation of N.Y.Civ.Serv.Law § 58(1), and to grant leave to the Attorney General of New York to intervene as a defendant for the limited purpose of defending the constitutionality of section 58(1). Plaintiff's new counsel withdrew a motion for class certification, and the court directed that plaintiffs' summary judgment motion be held in abeyance. Colon v. City of New York, No. 80-1580 (S.D.N.Y., July 10, 1981) (order).

 Seliste v. City of New York :

 Plaintiff Seliste took an examination similar to that in the Colon action in December 1973 with the intention of joining the New York City Police Department. He alleges, and defendants do not contest, that he took and passed physical and medical examinations in 1974, and was placed on an eligibility list in September 1974. Although several persons were appointed off that list in October 1974, plaintiff has never been appointed. That eligibility list expired on December 31, 1979.

 Prior to the expiration, plaintiff took and passed another examination entitled "Police Officer's Series, Exam No. 8155." Plaintiff alleges that defendant City rushed to establish this examination as soon as possible because it was concerned about the age of those eligible on the list from September 1974. Unlike section 58(1), N.Y. City Administrative Code § 434a-8.0 applies the twenty-nine year age cutoff at the time persons file to take the examination. Plaintiff took and passed the qualifying physical under the new examination, but on October 1, 1979, was notified by defendant that he was not qualified due to his age. His appeal to the Personnel Director of the New York City Civil Service Commission was denied on February 25, 1981. Plaintiff Seliste took another examination on June 20, 1981, the results of which have not yet been reported to the court. Plaintiff's complaint was filed on August 10, 1981.

 Gneiss v. City of New York :

 Plaintiff Gneiss filed his action on November 12, 1981. In it, he alleges that on June 20, 1981, he took and passed an examination for a position as an officer in the New York City Police Department. At the time, plaintiff was thirty-eight years of age. When he reported to the Police Academy for a medical examination on October 20, 1981, he was informed that he was not qualified because he exceeded the age requirements of N.Y. City Administrative Code § 434a-8.0.

 Discussion

 Plaintiffs Colon and Seliste moved for summary judgment. Because the record contained genuine issues of fact as to whether plaintiffs in those actions were otherwise ...


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