Grossman v. McMahon

• Decision Date: 09 December 1999
• Citation: 261 A.D.2d 54,699 N.Y.S.2d 582
• Parties: 1999 N.Y. Slip Op. 10,556 In the Matter of David GROSSMAN, Appellant, v. James W. McMAHON, as Superintendent of the New York State Police, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 582

699 N.Y.S.2d 582

1999 N.Y. Slip Op. 10,556

In the Matter of David GROSSMAN, Appellant, v. James W. McMAHON, as Superintendent of the New York State Police, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 9, 1999.

David B. Grossman, Central Square, appellant in person.

Eliot Spitzer, Attorney-General (Patrick Barnett-Mulligan of counsel), Albany, for respondents.

Before: CREW III, J.P., SPAIN, CARPINELLO, GRAFFEO and MUGGLIN, JJ.

CARPINELLO, J.

Appeal from a judgment of the Supreme Court (Keegan, J.), entered July 10, 1998 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents denying petitioner's request for reinstatement to his former position.

In 1987 petitioner, then a Sergeant with respondent Division of State Police, was placed on involuntary disability retirement following a determination that he was permanently unable to perform his police duties due to a herniated disc. When a 1996 medical examination conclusively determined that petitioner had never had a herniated disc, he sought reinstatement to this former position. After satisfactorily going through the initial phases of candidate testing, petitioner received a "Conditional and Contingent" offer of employment. On September 15, 1997, he accepted the conditional offer in writing with the understanding that it was dependent upon his satisfactory completion of all remaining phases of processing, including a medical examination and background investigation. On this same day, he completed a compilation of application materials, including a "New York State Police Accident and Arrest Record" (hereinafter the accident form). The accident form itself was a two-page document consisting of only four questions, one of which inquired about prior motor vehicle accidents to which petitioner responded in the negative.

On November 14, 1997, petitioner was advised that his application for reinstatement had been denied. The subsequent denial of his written request for reconsideration prompted petitioner to commence this CPLR article 78 proceeding. The record reveals that petitioner's request for reinstatement was denied for several reasons, including misrepresentations he had made during the application process, information received during the background investigation questioning his veracity, and the results of his psychological examination questioning his interpersonal skills, integrity and attitude toward the State Police. In support of their answer, respondents submitted the entire confidential background investigation file concerning petitioner's application for Supreme Court's in camera review. Petitioner, in reply affidavits from himself and his attorney, requested disclosure of the background investigation materials, as well as a hearing on the matter. Upon review of the in camera material, Supreme Court determined that a rational basis existed for the determination denying reinstatement. It further denied petitioner's request to review and respond to the information contained in the background file. Petitioner appeals.

The "fitness and good moral character" (Executive Law § 215 ) of an applicant is a discretionary determination made by respondent Superintendent of State Police (see, e.g., Matter of Shedlock v. Connelie, 66 A.D.2d 433, 434, 414 N.Y.S.2d 55, affd. 48 N.Y.2d 943, 425 N.Y.S.2d 95, 401 N.E.2d 217), the exercise of which is reviewable by a court solely on the basis of whether it was arbitrary, capricious or an abuse of discretion (see, Matter of Mallia v. Connelie, 76 A.D.2d 1030, 1031, 429 N.Y.S.2d 762). Petitioner has failed in his burden of proving that the advanced reasons for the denial of his application lacked a rational foundation. We turn first to petitioner's response on the accident form that he was never involved in a motor vehicle accident.

It was discovered during the course of the investigation that petitioner had indeed been involved in a motor vehicle accident in March 1994. Petitioner claims that his failure to include this information on the accident form was not a material misrepresentation. Rather, according to petitioner, this was a mere oversight due in large part because he was only given two hours' notice to report to the State Police to complete the "lengthy" application. We are unpersuaded. The entire application appears to be only 18 pages, requesting mostly pedigree information and responses to "Yes-No" questions. The accident form itself is short and uncomplicated. Moreover, petitioner has wholly failed to demonstrate how additional notice to complete the routine paperwork would have generated more complete and accurate responses, particularly for a practicing attorney and former State Trooper.

While petitioner emphasizes that it was a "minor" accident for which he was faultless, his characterizations do not render his denial immaterial. Significantly, the accident was relatively recent in time to his completion of the application, the police responded to it and both operators (i.e., petitioner ) reported personal injuries. Thus, it strains credulity that petitioner simply forgot about it when he completed the accident form, especially since the form contained an explicit notification that the willful failure to supply complete information or any false statement may result in disqualification. As an...