The opinion of the court was delivered by: Michael D. Stallman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Petitioner seeks judicial review, pursuant to CPLR Article 78, of respondent's determination not to place petitioner on a "special eligible list," pursuant to New York Military Law §§ 243 (7) and 243 (7-b). Petitioner alleges that respondent's actions were arbitrary and capricious, in bad faith, and contrary to law.
On or about December 14, 2002, petitioner took an open competitive civil service exam, Exam No. 2043, to become a firefighter with the New York City Fire Department. Petitioner passed the exam, and was placed on the exam's eligibility list, which was established on May 5, 2004. Petitioner was ranked 4694 on the list. This list remained active for potential civil service certification for placement until May 5, 2008.
The Notice of Examination stated that candidates were required to satisfy certain education and experience requirements, which consist of having a high school diploma plus either 30 college credits or two years of full-time military service, with an honorable discharge, by the date of appointment.
On or about April 28, 2006, petitioner enlisted in the United States Army in its Delayed Entry/Enlistment Program (DEP), which, according to DEP procedures, makes time counted in military service start from the date of enlistment, in this case, April 28, 2006.
On or about April 16, 2007, while petitioner was serving in Iraq, the Fire Department issued him a notice that it intended to appoint him, but that he needed to submit to medical and psychological testing and have a background investigation.
Petitioner was not due to be discharged from his military service until September, 2008. Petitioner's mother contacted the Fire Department, who informed her that petitioner could complete these remaining parts of his exam after his discharge.
On or about January 18, 2008, respondent reached petitioner's list number for potential certification. All those persons who were qualified and certified on that date were appointed to the Fire Department on January 21, 2008. According to respondent, after that date no person who took Exam No. 2043 was ever appointed, and potential placement from that eligibility list expired on May 5, 2008. The next appointments came from persons who passed a subsequent examination.
Petitioner was honorably discharged from the Army effective September 5, 2008; however, because of accumulated "terminal leave" time, petitioner was actually released on July 28, 2008.
Within 90 days of his release on July 28, 2008, petitioner contacted the Fire Department to take his medical and psychological examinations, and went to respondent to have his examination list number re-activated.
On or about October 9, 2008, the Fire Department advised petitioner that he passed all parts of the examination, that he was "good to go," and that he would join the next training class scheduled for January 5, 2009.
By letter dated September 23, 2008, respondent advised petitioner that, notwithstanding its decision to re-activate his examination list number, Military Law § 243, which safeguards civil service opportunities for persons serving in the military, did not apply to him because he did not complete his requisite military service until after May 5, 2008, the termination date for all ...