Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered May 14, 2009, denying the petition for a declaration that respondent acted arbitrarily and capriciously in determining that petitioner was not qualified to be placed on a "special eligible list" pursuant to Military Law § 243(7) and § 243(7-b), and to annul the determination and direct respondent to place petitioner on such a list, and dismissing the proceeding brought pursuant to CPLR article 78, affirmed, without costs.
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 Official Reports.
Tom, J.P., Saxe, Nardelli, Renwick, Freedman, JJ.
Military Law § 243(7) "preserv[es] the rights of potential employees on eligible lists while they are in military service" (Matter of DeFrancis v D'Ambrose, 57 AD2d 804, 805 , affd 44 NY2d 889 ); it does not extend the time to satisfy the minimum requirements for eligibility. While we acknowledge petitioner's service to his country, in denying him eligibility for a position with the New York City Fire Department, respondent did no more than abide by the rules governing appointment to civil service, without resort to "extraordinary efforts," as perceived by the dissent.
Petitioner took and passed an open competitive civil service exam, exam No. 2043, to become a New York City firefighter. To be placed on a special eligible list, Military Law § 243(7) requires that a person in military service be "reached for certification," which means that the candidate must be among those "eligibles from which selection for appointment may be made" (Rules and Regulations of the Department of Civil Service [4 NYCRR] § 4.1[a]). The notice of examination for exam No. 2043 clearly provides that "By the date of appointment, you must have . . . 30 semester credits from an accredited college or university, or . . . two years of honorable full-time U.S. military service." Nowhere in the notice does it state that "an applicant must only have two years military service at the time he is available for appointment" as urged by the dissent.
As of January 18, 2008, when petitioner was reached for certification, and January 21, 2008, when final appointments were made from the certified list of eligible candidates generated by exam No. 2043, petitioner had completed neither of the alternative minimum requirements of the position. In January 2008, petitioner had approximately 20 months of the required 24 months of military service and no college credits. The list of names certified for appointment from exam No. 2043 (which did not include petitioner) expired on May 5, 2008. Subsequent appointments came from the eligible list generated by exam No. 6019, which was certified in June 2008.
In January 2008, petitioner could not have been certified, not because he was in military service, but because he had failed at that time to meet the minimum eligibility requirements. Thus, he was not qualified for placement on a special eligible list from which selection for the position of firefighter could be made, and respondent's determination was not arbitrary and capricious. Further, we reject the dissent's unfair characterization of respondent's action as "go[ing] to extraordinary lengths to prevent" petitioner, who served in the military, from obtaining a position with the Fire Department, which is utterly unsupported by the record.
We have considered petitioner's remaining contentions and find them unavailing. All concur except Saxe and Nardelli, JJ. who dissent in a memorandum by Nardelli, J. as follows:
NARDELLI, J. (dissenting)
I respectfully dissent, because I believe that the interpretation of Military Law § 243(7) and § 243(7-b) presently espoused by respondent New York City Department of Citywide Administrative Services (DCAS) is arbitrary and without support in the statute. Furthermore, this interpretation conflicts with its own prior interpretation of the sections provided in a letter sent to petitioner on September 23, 2008. Indeed, respondent has undertaken extraordinary efforts to deny a military combat veteran a position with the Fire Department, when even the Fire Department wants to employ him.
At the outset, I cannot help but to take note of the irony presented in respondent's position. It has gone to extraordinary lengths to prevent petitioner, an Iraq war veteran, and member of a firefighting family, from becoming a firefighter, in the very city where not 10 years ago hundreds of firefighters perished as the result of a despicable attack on American soil. Petitioner has served his country honorably in its military service, and now seeks to continue his public service by joining the service which produced so many heroes on that infamous day.
On or about December 14, 2002, petitioner took an open competitive civil service exam, Exam No. 2043, to become a firefighter with the City's Fire Department. The Notice of Examination for the test, prepared by DCAS, is a comprehensive four-page document which outlines, inter alia, the nature of a firefighter's job, and the various requirements that have to be met in order to qualify successfully for the position. As relevant to this appeal, the following language is contained in the Notice of Examination: "Education and Experience Requirements:By the date of appointment, you must have . . . "(2) a four year high school diploma or its educational equivalent and have completed two years of honorable full time U.S. military service" (additional emphasis added).
It is undisputed that petitioner has met the educational requirement. It is also undisputed that before the list expired, he met the military service requirement.
Petitioner passed the examination and was placed on the list, which was established on May 5, 2004, and which expired on May 5, 2008. His ranking was 4694. On April 28, 2006, while the list was still active, petitioner enlisted in the United States Army, and subsequently served in Iraq. He was honorably discharged ...