Deas v. Levitt

• Citation: 539 N.E.2d 1086,541 N.Y.S.2d 958,73 N.Y.2d 525
• Parties: , 539 N.E.2d 1086 In the Matter of Melvin DEAS, Respondent, v. Judith LEVITT, as Director of the New York City Department of Personnel, et al., Appellants.
• Decision Date: 04 May 1989
• Court: New York Court of Appeals Court of Appeals

Page 958

541 N.Y.S.2d 958

73 N.Y.2d 525, 539 N.E.2d 1086

In the Matter of Melvin DEAS, Respondent, v. Judith LEVITT, as Director of the New York City Department

of Personnel, et al., Appellants.

Court of Appeals of New York.

May 4, 1989.

Certiorari Denied Oct. 30, 1989.

See 110 S.Ct. 324.

Peter L. Zimroth, Corp. Counsel (Dana Martine Robbins, Francis F. Caputo and Larry A. Sonnenshein, New York City, of counsel), for appellants.

Ellen M. Weber and Margaret K. Brooks, New York City, for respondent.

Mark D. Lebow and Jean Rodgers Mills, New York City, for New York City Civil Service Com'n, amicus curiae.

OPINION OF THE COURT

SIMONS, Judge.

Petitioner, seeking a promotion in the competitive classification of the civil service, took the required examination and achieved the third highest score. His certification was delayed, however, because he was found to be medically unqualified. After administrative proceedings, the disqualification was reversed but the eligible list on which his name appeared expired before the Department of Personnel certified him. He instituted this proceeding to compel establishment of a special eligibility list, claiming that this is the appropriate remedy under our decision in Matter of Mena v. D'Ambrose, 44 N.Y.2d 428, 406 N.Y.S.2d 22, 377 N.E.2d 466 and that it is warranted by the Due Process Clauses of the State and Federal Constitutions.

Before being entitled to placement on a special eligible list for a civil service position, an applicant must bring a proceeding, before the list expires, successfully challenging the validity of the list itself. Because petitioner does not challenge the validity of the eligible list as being contrary to the merit and fitness requirements of the State Constitution (art. V, § 6), he has no right to the relief requested. This conclusion does not violate due process of law under either the Federal or State Constitutions; nor is distinguishing between applicants who attack the constitutional validity of the list and those that allege only that they were otherwise eligible, arbitrary and capricious. Accordingly, the order of the Appellate Division, 139 A.D.2d 1, 530 N.Y.S.2d 807, should be reversed and the judgment of Supreme Court dismissing the petition should be reinstated.

I

Petitioner Melvin Deas is employed as a bus maintainer helper "B" by the New York City Transit Authority. In October 1983, he applied for promotion to the position of bus maintainer "A". Petitioner passed the required civil service examination and ranked third on the eligible list established in March 1984. In August of that year a position became available and he was asked to report for a medical examination. Following a psychiatric evaluation, the Transit Authority disqualified petitioner from employment on medical grounds. He appealed the disqualification to the New York City Department of Personnel which held a hearing and conducted a second psychiatric examination. In March 1985, the New York City Director of Personnel disqualified petitioner for medical reasons based on the psychiatrists' reports. Petitioner then took his final administrative appeal to the New York City Civil Service Commission and requested a hearing. On August 14, 1986, the Civil Service Commission reversed the Department of Personnel's decision and concluded that petitioner was medically eligible for the promotion. On September 5, 1986, the Department of Personnel notified petitioner that it could not certify him for the position because the eligible list had expired on August 27, 1986 upon the formation of a new list based upon a competitive examination held in July. Petitioner had not taken the July examination, thus his name was not on the new eligible list, and he requested that his name be placed on a special eligible list. His request was denied and he initiated this article 78 proceeding, contending that the refusal to certify him for the bus maintainer "A" position was arbitrary and capricious and violated his right to due process of law under the State and Federal Constitutions.

Supreme Court dismissed the petition but the Appellate Division reversed and granted the petition, directing petitioner's name be placed on a special eligible list. Two Justices concluded that petitioner's case was distinguishable from our decision in Matter of Tanzosh v. New York City Civ. Serv. Commn., 44 N.Y.2d 906, 407 N.Y.S.2d 638, 379 N.E.2d 166 because in this case, unlike Tanzosh, the eligible list did not expire until after the administrative appeals process had been completed and the Civil Service Commission had determined that petitioner was medically eligible. They also held, relying on Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265, that denying petitioner certification would constitute a violation of his Federal due process rights. Justice Wallach concurred in result, concluding that Tanzosh could not be distinguished from the case at bar, but that strict application of the Tanzosh rule results in an unconstitutional deprivation of the opportunity to be heard and a violation of equal protection of the law. Justices Sandler and Sullivan dissented and voted to affirm. The Department of Personnel has appealed as of right (see, CPLR 5601[a].

II

Article V, § 6 of the N.Y. Constitution provides in pertinent part, "Appointments and promotions in the civil service of the state and of all of the civil divisions thereof * * * shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive". Pursuant to this provision, periodic examinations are given to candidates for appointment and promotion in the civil service and, after the results of an examination are calculated, an eligible list is established which places the successful candidates in order of their grades. The list continues for not less than one nor more than four years. An eligible list that has been in existence for one year or more terminates upon the establishment of a new list "unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction" (Civil Service Law § 56). Appointments must be made from names appearing on the list but the appointing authority is free, in its discretion, to select any one of the top three candidates.

For many years we interpreted these provisions to mean that a civil service applicant could not be appointed from an expired list. In the words of former Chief Judge Loughran, it is "a legal impossibility" (Matter of Cash v. Bates, 301 N.Y. 258, 261, 93 N.E.2d 835; see also, Matter of Carow v. Board of Educ., 272 N.Y. 341, 345-346, 6 N.E.2d 47; Ciaccia v. Board of Educ., 271 N.Y. 336, 339, 3 N.E.2d 446; Hurley v. Board of Educ., 270 N.Y. 275, 280, 200 N.E. 818). In Hurley, the seminal case on the subject, the Legislature passed a law which sought to revive an expired list. The plaintiff argued that the statute did not disregard the merit and fitness requirement of the State Constitution since it permitted appointments only from an eligible list previously prepared after a competitive examination. We rejected her argument, stating: "Competitive examination, so far as practicable, is the sole test of merit and fitness permitted by the Constitution. Preference among those qualified for a position must be determined solely by relative standing upon the eligible list then in force. Favor must be excluded. It is not excluded when without a new examination the Legislature commands that appointments must be made from an eligible list then not in force * * *. A competitive examination may demonstrate merit and fitness, at the time of the examination. As time passes, its value as a test of merit and fitness diminishes. Others may, then, be better prepared and more fit to fill a position than those who are upon the list." (Id., at 280, 200 N.E. 818 [emphasis in original].)

In 1978, we rendered three decisions which, it appears from the several opinions of the Appellate Division, have generated confusion in this area. In the first case, Matter of Mena v. D'Ambrose, 44 N.Y.2d 428, 406 N.Y.S.2d 22, 377 N.E.2d 466, supra, we established a narrow exception to our previous rule, holding that when an applicant demonstrates in a judicial action instituted prior to the expiration of the eligible list that it is based on an erroneously scored test, the statutory life of the list does not begin until the list is corrected. Thus, we directed that petitioner, having successfully challenged the legality of the list, be placed on a special eligible list. In Matter of New York City Dept. of Personnel v. New York State Div. of Human Rights, 44 N.Y.2d 904, 407 N.Y.S.2d 637, 379 N.E.2d 165, we held that an applicant, who was wrongly passed over for appointment because of her age, could not be placed on a special eligible list because she did not file her administrative complaint until after the eligible list had expired. Finally, in the third decision, Matter of Tanzosh v. New York City Civ. Serv. Commn., 44 N.Y.2d 906, 407 N.Y.S.2d 638, 379 N.E.2d 166, supra, a case indistinguishable from the matter under consideration, the applicant was initially found medically unfit for the position of patrolman, but it was determined in an administrative proceeding, concluded seven months after the expiration of the list, that he was medically eligible for certification. Tanzosh's claim that he should be placed on a special eligible list was denied.

All five Appellate Division Justices read these decisions to mean that petitioner's entitlement to relief depended upon whether a judicial, as opposed to an administrative, proceeding had been commenced prior to the expiration of the eligible list. Although the commencement of a proceeding before the list expired was necessary, the controlling issue was not the nature of the proceeding, but the nature of the claim. Thus, Mena is different...