Matter of Leone v City of New York

Matter of Leone v City of New York 2011 NY Slip Op 01701 Decided on March 8, 2011 Appellate Division, First Department 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.

Decided on March 8, 2011
Tom, J.P., Sweeny, Renwick, Freedman, Manzanet-Daniels, JJ.
4451 108072/09

[*1]In re Vincent Leone, Petitioner-Appellant,

v

The City of New York, et al., Respondents-Respondents.




Hugh B. Ehrenzweig, White Plains, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Drake A.
Colley of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered December 10, 2009, which granted respondents' cross motion to dismiss the petition brought pursuant to CPLR article 78 seeking to reinstate respondents' promotional list for the position of Sergeant in the New York City Police Department and retroactively promote petitioner to the rank of Sergeant, unanimously affirmed, without costs.

Petitioner commenced this proceeding after the expiration of the promotional list. As petitioner acknowledges, he may not be promoted from an expired list and the courts do not have the power to extend the life of a civil service list (see Matter of Deas v Levitt, 73 NY2d 525, 532-533 [1989]; Andriola v Ortiz, 156 AD2d 241, 242 [1989], lv dismissed, 75 NY2d 963 [1990]). Further, given, among other things, petitioner's extensive disciplinary history, respondents had a rational basis for declining to promote him (see generally Matter of Straker v Giuliani, 292 AD2d 260 [2002], lv denied 98 NY2d 606 [2002]). Petitioner's argument that he was the victim of the Department's "illegal quota" system, lacks evidentiary support.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2011

CLERK