Deas v. Levitt
| Decision Date | 28 June 1988 |
| Citation | 530 N.Y.S.2d 807,139 A.D.2d 1 |
| Parties | In the Matter of the Application of Melvin DEAS, Petitioner-Appellant, For a judgment pursuant to Article 78 of the CPLR v. Judith LEVITT, as the Director of the New York City Department of Personnel, and New York City Department of Personnel, Respondents-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ellen M. Weber, of counsel (Margaret K. Brooks with her on the brief; Legal Action Center of the City of New York, Inc. as attorneys), for petitioner-appellant.
Dana Martine Robbins, of counsel (Larry A. Sonnenshein with her on the brief; Peter L. Zimroth, attorney), for the respondents-respondents.
Before SANDLER, J.P., and SULLIVAN, MILONAS, ELLERIN and WALLACH, JJ.
Petitioner-appellant Melvin Deas instituted this proceeding pursuant to Article 78 of the CPLR in order to challenge the refusal by defendants, Director of the New York City Department of Personnel and the Department of Personnel, to certify him for the position of Bus Maintainer "A". It is petitioner's contention that defendants' action deprived him of his right to due process under both the Constitutions of the State of New York and the United States and was also arbitrary, capricious and contrary to law. In that connection, a review of the record of the instant matter indicates that there is merit to petitioner's claim that he was the victim of an improper enforcement of a statutory time limitation.
Petitioner has been employed by the New York City Transit Authority for over twenty-three years, serving first as a car cleaner and later being promoted to the position of Bus Maintainer Helper "B". He was also licensed to operate a bus after successfully completing the Transit Authority's training program. In October of 1983, petitioner applied for promotion to Bus Maintainer "A". A Bus Maintainer "A" is responsible for maintaining, inspecting and repairing the bodies and structural equipment on buses and, like a Bus Maintainer Helper "B", operates buses within the depot. Petitioner passed the required civil service examination and was ranked third on the eligible list, established March 21, 1984. In August of 1984, when a position became available, he was asked to report for a medical examination, a prerequisite to appointment. As part of that examination, he was interviewed by a psychiatrist, who concluded that petitioner was not medically qualified for the job because of a history of schizophrenia and drug abuse. It is significant that although petitioner had been treated for a psychological problem in 1971, the psychiatrist conceded that petitioner exhibited none of the symptoms of the disease suffered by him thirteen years earlier. Yet, acting upon the recommendation of its psychiatric consultant, the Transit Authority disqualified petitioner from the appointment.
Petitioner thereafter appealed his medical disqualification to the New York City Department of Personnel, which took no action in connection with the matter for some five months. Finally, in March of 1985, a second psychiatric examination was conducted, and the same finding was made--petitioner should be disqualified for the position of Bus Maintainer "A" because there was a risk that his psychopathology would recur. The Director of Personnel then disqualified petitioner, who promptly appealed the determination to the New York City Civil Service Commission. In September of 1985, five months after petitioner had filed his appeal, the Department of Personnel submitted its report, and petitioner requested a hearing to rebut what he believed to be factual inaccuracies contained in the Department's account. The parties were informed in April of 1986 that a hearing would be conducted on June 16, 1986, but, shortly before the scheduled date, the Department of Personnel requested on adjournment. The hearing was ultimately held on July 9, 1986. On August 14, 1986, the Commission issued a decision overturning petitioner's medical disqualification, stating that:
We have carefully reviewed the documentary and testimonial evidence presented to us. Appellant has demonstrated no psychological nor drug-related difficulties since 1971. No medical disability has been diagnosed since that time. The Department relies primarily on Dr. Petrone's assertion of a 50 percent possibility of recurrence of appellant's disorder and on his concern that appellant's awareness and insight into his illness is low due to his lack of follow-up treatment. This concern, we believe, has been rebutted by appellant's record over the past fifteen years. He has had an exemplary record with the Transit Authority. During that time he has been responsible for driving buses throughout the depot. His duties as a Bus Maintainer "A" would involve few changes from his present position. Only rarely would he be responsible for driving on City streets; these occasions would not involve transporting passengers. His primary driving responsibilities would be within the depot; therefore, the public will not be exposed to risk.
We, therefore, conclude that appellant is capable of performing the duties of a Bus Maintainer "A" at the present time. We also believe that appellant possesses no mental disability that can reasonably be expected to prevent him from carrying out the responsibilities in the future. ...
The Department of Personnel subsequently advised petitioner that it would not appeal the ruling by the Civil Service Commission. Nonetheless, on August 26, 1986, twelve days after the Commission's determination, the eligible list from which petitioner was to be certified expired. A new list, based upon an examination that had been administered in July of 1986, was published on August 27th. The Department of Personnel, therefore, informed petitioner that he was no longer eligible for the position being sought and would not be certified. Petitioner then requested that the Department place him on a special eligible list so that he could be considered for the Bus Maintainer "A" vacancies that were to be filled in the near future. Respondent Personnel Director denied the request, claiming that it did not have the authority to establish a special eligible list and that petitioner's eligibility terminated with the expiration of the eligibility list. The instant proceeding pursuant to Article 78 of the CPLR ensued.
The Supreme Court denied petitioner's application and, instead, granted respondents' cross motion to dismiss on the ground that the petition failed to state a cause of action. According to the court, "function of judicial review in an Article 78 proceeding is not to weigh the facts and merits de novo and substitute the Court's judgment for that of the agency's determination, but rather to decide whether such can be supported on any reasonable basis." Petitioner has appealed, arguing that he possesses a property interest in the right to appeal his medical disqualification; that respondents' action in declining to extend his eligibility beyond the duration of the eligibility list circumscribed his right to appeal; that he was not given notice that his right to appeal was so limited; and that respondents' refusal to certify him for Bus Maintainer "A" violates due process and, in addition, was arbitrary, capricious and an abuse of discretion.
Relevant to the matter herein are certain sections of the State Civil Service Law and the New York City Charter. Specifically, Civil Service Law 50(4) provides that:
Disqualification of applicants or eligibles. The State Civil Service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible ...
(b) who is found to have a physical or mental disability which renders him unfit for the performance of the duties of the position in which he seeks employment, or which may reasonably be expected to render him unfit to continue to perform the duties of such position ...
No person shall be disqualified pursuant to this subdivision unless he has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.
Section 812(c) of the New York City Charter authorizes the Civil Service Commission "to hear and determine appeals by any person aggrieved by any action or determination of the personnel director" made pursuant to enumerated provisions of that chapter, and the Commission "may affirm, modify, or reverse such action or determination." Respondents, however, rely upon Civil Service Law 56, which states, in pertinent part, that In that regard, respondents urge that the appointment of a candidate to a civil service position after the expiration of the applicable eligible list is a legal impossibility, citing Matter of New York City Department of Personnel v. New York State Division of Human Rights, 44 N.Y.2d 904, 407 N.Y.S.2d 637, 379 N.E.2d 165; Matter of Tanzosh v. New York City Civil Service Commission, 44 N.Y.2d 906, 407 N.Y.S.2d 638, 379 N.E.2d 166; Matter of Cash v. Bates, 301 N.Y. 258, 93 N.E.2d 835.
At the outset, it should be noted that while an individual who has performed well on a civil service examination does not have a right to actually receive an appointment, he does possess a property right to be considered for the appointment in question ( Drogan v. Ward, 675 F.Supp. 832 see also Matter of Cassidy v. Municipal Civil Service Commission, 37 N.Y.2d 526, 375 N.Y.S.2d 300, 337 N.E.2d 752). Moreover, pursuant to Civil Service Law 50(4) and City Charter 812(c), an applicant whose certification...
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Mead v. Levitt
... ... We also grant leave because the result herein may be in conflict with Matter of Deas v. Levitt, 139 A.D.2d 1, 530 N.Y.S.2d 807, recently decided by this court. Although the constitutional arguments made in Deas were not, until now, made herein, whether petitioner should have the opportunity to make such arguments to the Court of Appeals is a question which, we think, should be ... ...