Jubic v. City of Troy City Corp.

• Decision Date: 04 October 1995
• Citation: 166 Misc.2d 326,633 N.Y.S.2d 720
• Parties: Edward J. JUBIC, Plaintiff, v. CITY OF TROY CITY CORPORATION et al., Defendants.
• Court: New York Supreme Court

Page 720

633 N.Y.S.2d 720

166 Misc.2d 326

Edward J. JUBIC, Plaintiff, v. CITY OF TROY CITY CORPORATION et al., Defendants.

Supreme Court, Rensselaer County.

Oct. 4, 1995.

James E. Long, Albany, for plaintiff.

Peter R. Kehoe, Corporation Counsel, Troy, for defendants.

GEORGE B. CERESIA, Jr., Justice.

On June 8, 1991 plaintiff took and passed an examination for the position of firefighter with the City of Troy, New York. The exam was intended for candidates under 35 years of age. The notice for the examination contained the following language:

Minimum Qualifications: Candidates must meet the following requirements on or before the date of the written test:

1. Age: Candidates must be not less than 19 years of age and must not have reached their 35th birthday by the date of the written test. Eligibility for appointment will terminate when an applicant reaches his/her 35th birthday. Candidates who lack one month or less of the minimum age shall be deemed eligible if otherwise qualified. Proof of age must be submitted (birth certificate).

By letter dated May 31, 1994 from Alson J. Spain, Jr., Personnel Director for the City of Troy, plaintiff was advised that the City had been informed by the Troy Civil Service Commission ("Commission") that plaintiff was qualified for employment as firefighter at a starting salary of $21,880.00. The letter inquired whether plaintiff was interested in the position. Plaintiff responded, indicating that he was interested. By letter dated July 1, 1994, the then Troy City Manager, James Caplinger, offered plaintiff the position as firefighter, contingent upon his passing a physical exam and physical fitness test. Plaintiff signed and returned the letter, signifying his acceptance of the firefighter position. On July 15, 1994 Alson J. Spain, Jr. wrote to plaintiff indicating the following:

You are hereby admitted to the Troy Firefighter's physical fitness test on July 18, 1994, conditionally. The Troy Civil Service Commission has not approved a change in the regulation which currently prohibits the appointment of any candidate who has reached their thirty-fifth birthday.

If the Commission does not change this regulation, you will not be eligible for an appointment to the Troy Fire Department, despite the fact that you may have passed all of the pre-employment tests.

We will inform you of the Commission's action as soon as that information is available. (emphasis supplied)

At the request of Mr. Spain, the Troy Civil Service Commission, at its July 7, 1994 meeting, considered the age restriction for the position of firefighter. On a two to one vote of the three commissioners it was determined that the age restriction should remain, since the original notice of examination for the firefighters position had contained the restriction.

Plaintiff took and passed the physical exam and fitness test but apparently was not directed or permitted to report to duty as firefighter.

Plaintiff seeks judgment: declaring that plaintiff has been denied equal protection as guaranteed under the United States and New York State Constitution; declaring that plaintiff is entitled to the position of firefighter nunc pro tunc with full and complete seniority rights; for counsel fees of $10,000 pursuant to 42 U.S.C. § 1981 et seq.

Crucial to the question before the Court are the relevant portions of Civil Service Law § 54. That section recites in part:

Notwithstanding any provision of law to the contrary ... neither the state civil service department ... nor any municipal civil service commission shall prohibit, prevent, disqualify, or discriminate against, any person ... by reason of his or her age; and any such rule, requirement, resolution, regulation or penalization shall be void. Nothing herein contained, however, shall prevent the adoption of reasonable minimum or maximum age requirements for open competitive examinations for positions such as policeman, fireman, prison guard, or other positions which require extraordinary physical effort, except where age limits for such positions are already prescribed by law. ¹ * * *

From the foregoing, it is clear that as a general proposition, the adoption by a municipality of age restrictions in connection with employment requirements is unlawful and void. The sole exception to this rule indicates that when dealing with the positions of policeman, firefighter or prison guard, reasonable requirements may be adopted for open competitive examinations (CSL § 54, supra). Nothing is mentioned in CSL § 54 regarding imposition of age limitations related to appointment to these positions after the examination has been taken.

Under Civil Service Law § 50[4][a] a municipal civil service commission may refuse to examine an applicant who is found to lack any of the established requirements for admission to the examination. Similarly and under the same section, the municipal civil service commission may properly refuse to certify an applicant who was found to be ineligible for the position. The Court also notes that there is a procedure by which the municipal civil service commission may, on notice to the applicant, revoke an applicant's certification and appointment and direct that his employment be terminated (see, CSL § 50[4] ). There is no evidence before the Court that petitioner's certification and/or his eligibility for the firefighter position was ever revoked by the Commission pursuant to CSL § 50[4]. ²

The Court is mindful that summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue (Sternbach v. Cornell University, 162 A.D.2d 922, 923, 558 N.Y.S.2d 252 [Third Dept., 1990]. The focus should be on issue identification rather than issue determination (Sternbach v. Cornell University, supra ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Once such showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v. City of New York, supra; Alvarez v. Prospect Hosp., supra; see also Wahila v. Kerr, 204 A.D.2d 935, 936-937, 611 N.Y.S.2d 966 [Third Dept., 1994].

In the Court's view plaintiff has established a prima facie case of age discrimination in violation of CSL § 54 by reason of the following facts: that plaintiff while under the age of 35 took and passed on June 8 1991 the open competitive examination for the position of firefighter; that plaintiff's name was on the eligible list for firefighters as a result of the examination taken on June 8, 1991; that plaintiff was offered the position of firefighter by City Manager James Caplinger on July 1, 1994, subject to a single contingency (passing the physical exam); that plaintiff accepted the offer for employment in a timely fashion and he passed the physical exam; that defendant then refused to employ plaintiff by reason of his age, to wit: plaintiff had attained 35 years of age, despite plaintiff's acceptance of defendant's offer of employment.

Defendant in its answer relies heavily upon the action taken at the July 7, 1994 meeting of the Troy Civil Service Commission in refusing to modify the age requirement. Defendant also relies upon advice apparently...