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RUDERMAN v. POLICE DEPT. OF NEW YORK

July 12, 1994

IRVING RUDERMAN, Plaintiff,
v.
POLICE DEPARTMENT OF THE CITY OF NEW YORK, Defendant.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 BACKGROUND2

 Ruderman is a New York resident born on June 9, 1947. In 1973 and 1976, he applied for a position as an NYPD police officer, but was denied employment due to city-wide hiring freezes. Subsequently, on June 8, 1990, when he was 42 years old, Ruderman took the competitive civil service examination for employment with the NYPD, the New York City Transit Police Department and the New York City Housing Police Department. He passed the test, receiving a score of 95, and was placed 1508 on the NYPD's eligibility list of applicants for the position of police officer.

 In October 1990, at a character investigation interview conducted at Police Department Headquarters, Ruderman was informed that he could not become a police officer because of his age. The NYPD based its decision not to hire Ruderman on New York Civil Service Law section 58(1), which established a maximum hiring age of twenty-nine years for NYPD police officers. As a result, on December 21, 1990, Ruderman filed charges against the NYPD with the New York State Division of Human Rights (the "SDHR").

 Subsequently, on December 29, 1992, Ruderman commenced this action for employment discrimination pursuant to section 7(b) of the ADEA. *fn3" Specifically, Ruderman alleges that the NYPD discriminated against him in October 1990 by refusing to hire him because he was more than 29 years old. Ruderman alleges further that "I believe that the defendant is still committing these acts against me." See the Complaint at P 11.

 The NYPD now moves for an order dismissing the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. Specifically, the NYPD contends that, while the ADEA prohibits discrimination based on age, the NYPD was exempt from complying with the ADEA for the period from January 1, 1987 until December 31, 1993. In addition, the NYPD contends that it was required, pursuant to New York Civil Service Law section 58(1), to disguises Ruderman from a position as a police officer in October 1990, as Ruderman was older than the maximum hiring age at that time. In response, Ruderman contends that the ADEA exemption regarding the hiring of public safety officers has expired, and that the City of New York continues to discriminate against him. Plaintiff also seeks to amend his complaint to add certain defendants and additional instances of discrimination.

 DISCUSSION

 When passing on a motion to dismiss the complaint, the Court must accept the allegations of the complaint as true and construe them in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). A complaint should not be dismissed for failure to state a claim "unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 Prior to October 28, 1990, the date that Ruderman, then 43, claims he was discriminated against, New York Civil Service Law section 58(1) provided:

 
No person shall be eligible for provisional or permanent appointment in the competitive class of the civil service as a police officer . . . unless . . . (a) he is not less than twenty nor more than twenty-nine years of age as ...

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