The opinion of the court was delivered by: SOFAER
MEMORANDUM OPINION AND ORDER
Plaintiff Peter Griffin has moved for summary judgment on his claim that defendants violated his rights by removing him from the list from which the City of Yonkers appoints its firefighters. He seeks an order requiring his restoration to the firefighter-eligible list, his immediate hiring and swearing-in as a firefighter, compensatory damages, and attorneys' fees. Defendants argue that plaintiff fails to state a claim on which relief may be granted, and alternatively that they are entitled to summary judgment. At oral argument on the motion, defendants formally moved for summary judgment.
In 1972 plaintiff was convicted of disorderly conduct in state court. Plaintiff was employed from 1976 to 1977 as a letter carrier by the United States Postal Service. On December 15, 1977 plaintiff pleaded guilty to federal charges involving the cashing of checks stolen from the mail, and on January 26, 1978 plaintiff was sentenced in this Court as a young adult offender under 18 U.S.C. § 4216. Plaintiff was sentenced to probation, but required to serve three months in prison as a special condition of probation. He was also dismissed from the Postal Service.
On April 26, 1978 plaintiff applied to take the examination for firefighter in the office of the Municipal Civil Commission of the City of Yonkers. Question "7" of that application asked:
Except for minor traffic violations and adjudications as youthful offender, wayward minor or juvenile delinquent, have you ever been convicted of an offense against the law, forfeited collateral or are you now under charges for any offense against the law?
Griffin answered "No". Question "10" of the application asked: "Were you ever dismissed from any employment?" Griffin answered "No".
Plaintiff took and passed Firefighter Examination No. 68-627, given on May 20, 1978. His name was placed on the eligible list established on January 30, 1979, along with the names of all other persons who passed the examination. An investigation was thereafter conducted by the Yonkers Police Department with respect to all individuals whose names appeared on the firefighter-eligible list. It revealed plaintiff's 1977 arrest for mail fraud, as well as his 1972 disorderly conduct arrest. Griffin was invited to appear in person at a meeting before the Municipal Civil Service Commission to discuss these matters.
On March 6, 1979, Judge Stewart set aside plaintiff's young-adult-offender conviction, pursuant to 18 U.S.C. § 5021(b). Soon thereafter, at a meeting before the Municipal Civil Service Commission on March 19, 1979, Griffin revealed and discussed his federal conviction. He also revealed his 1972 disorderly conduct conviction. Griffin claims these revelations were willingly and openly made. Defendants concede the revelations were made, but claim they were made grudgingly. Compare affidavit of Peter Griffin para. 2 with affidavit of Frederick S. Carey paras. 9-11. The Commission wrote as follows to Griffin on March 21, 1979:
As the result of your appearance at the Commission meeting of March 19 regarding your police record, your name has been eliminated from the eligible list for Firefighter No. 68-627.
Plaintiff's Motion for Summary Judgment, Ex. C. (hereinafter cited as "P.X."). On April 2, 1979, the Commission received an opinion letter from the Yonkers Department of Law which, without citing any authorities, stated: "Griffin should not be denied his right to be certified for an appointment to the position of firefighter based only on his 'Young Adult Offender' conviction." P.X. "D." The Commission took no recorded action in response to this opinion.
On October 16, 1979 the Commission allowed plaintiff and his attorney to appear and appeal Griffin's removal from the list. The appeal was denied by letter dated November 7, 1979.
Plaintiff sued under C.P.L.R., art. 78 in Supreme Court, Westchester County, for an order annulling his disqualification. On March 13, 1980, Justice Leonard Rubenfeld entered the following order conditionally restoring plaintiff to his original place on the eligibility list:
The petition is granted and petitioner is restored to his original place on the eligibility list but without prejudice to further proceedings by the respondents to declare petitioner ineligible pursuant to Section 50 (subdiv. 4) of the [Civil Service] Law. It is clear from the papers submitted that petitioner was removed from the eligible list without ever having been given adequate written statement of the many reasons now given for his disqualification and without being afforded an opportunity to explain and submit facts in opposition to such disqualification, as required by the foregoing provisions of the [Civil Service] Law (cf. Prasad v. Merges, 65 A.D.2d 663, 409 N.Y.S.2d 815; Matter of Cassidy v. New ...