Matter of City of N.Y. v New York City Civi. Serv. Commn.

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Matter of City of N.Y. v New York City Civi. Serv. Commn. 2011 NY Slip Op 33450(U) December 20, 2011 Sup Ct, NY County Docket Number: 401112/11 Judge: Carol E. Huff Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] I O N 1212712011~ SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: CAROL E. HUFF PART Index Number : 401 112/2011 CITY OF NEW YORK -3% INDEX NO. vs MOTION DATE NYC CIVIL SERVICE COMMISSION MOTION SEQ NO. Sequence Number : 001 'ARTICLE 78 INO(@). I I - Exhlbits I NO(@). Replylng AMdavlta Upon the foregolng paperq, It Is ordered that thls I1 IW S ) . Anrwsrlng Amdavlh FILED c DEC 21 2011 NEW YORK COUNTY CLERKS OFFICE Dated: DEd 2 0 2011 % . ,J.S.C. CAf?OLE. HUFF I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE:...........................MOTION 3. CHECK IF APPROPRIATE: ................................................ CASE DISPOSED I: S GRANTED DENIED 0 NON-FINAL DISPOSITION 0QRANTED IN PART 0OTHER SUBMIT ORDER 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O N : PART 32 In the Matter of thc Application of THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, EDNA WELLS HANDY, as Commissioner of the New York City Department of Citywide Administrative Services, and : RAYMOND W. KELLY, as Commissioner of the New York City Police Department, Petitioners, For a Judgment and Order Pursuant to Article 78 of the Civil Practice Law and Rules, Index No. 401 1 12/11 : : - against - FILED DEC 2 1 2011 THE NEW YORK CITY CIVIL SERVICE COMMISSION and VICTOR N. LUNA, Respondents. : NEW YORK COUNTY CLERKS OFFICE CAROL E. HUFF, J.: In this Article 78 proceeding, petitioners move for an order annulling the determination of respondent New York City Civil Service Commission ( CCSC ), dated December 29, 2010, which reversed the determination of petitioner New York City Police Department ( NYPD ) that respondent Victor N. Luna was not psychologically fit for the position of Police Officer. Seeking to become a Police Officer, Luna took Civil Service Examination No. 6010 on October 28, 2006, and placcd number 2254 on the eligible list. Subsequently he was required to submit to and pass medical, physical and psychological examinations as well as a background investigation, before being deemed qualified for thc position. Luna was interviewed by an NYPD psychologist on April 16,2008. In her report dated May 16,2008, the psychologist [* 3] found Luna psychologically unqualified for police work. Among the factors the psychologist considered were Luna s six driver s license suspensions, a three-year period of unemployment, termination from two jobs, and early school difficulties relating to cognitive and behavioral issues. Finding him unqualified, she concluded that Luna had not reached the level of responsible or mature functioning expected for an average 30 year old man and expressed concern about [Luna s] ability to tolerate and deal with the elevated level of stress and responsibility that is inherent in police work. Candidate Psychological Disqualification Summary, Adria N. A d a m , dated May 16,2008. NYPD notified Luna of his disqualification on March 25,2009, and he filed an appeal to CCSC on April 23, 2009. In connection with that appeal, he retained his own psychologist who rcported his opinion that Luna was qualified for police work. NYPD submitted Luna s entire psychological file to an outside consultant, who sustained the disqualification on October 9, 2009. On August 10,2010, CCSC conducted a de novo review of the matter, requiring NYPD to present its evidence first, over NYPD s objections that such review was inappropriate and that I the burden of proof should have been on Luna. Relying on the evidence adduced at the hearing including the report of its own psychologist, CCSC reversed NPYD s determination of disqualification on December 29,20 10. Civil Service Examination No. 6010 expired on January 3,20 11, and Luna cannot be restored to the cxpired list. Respondents contend that this fact renders the matter moot. Petitioners argue that the petition should be decided because Luna has sat for another exam, No. 8132, and is listed as eligible candidate number 5137. However, that exam has not been -2- [* 4] established, and there is no indication that Luna s number has been or will be reached. Petitioners have set forth significant objections to the procedure followed by CCSC, including the propriety of de novo review, the burden of proof at the review, NYPD s entitlenient to rely on its own experts, and the deference that should be given NYPD, a quasimilitary entity charged with public safety, in determining who is qualified to become a Police 0fficer. However, an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. Hearst Corn. v Clyne, 50 NY2d 707, 714 (1980). Since, whatever this Court finds, Luna cannot be reinstated to the eligible list for Examination No. 60 10, the proceeding must be dismissed as moot. Petitioners argument that Luna may be called in connection with Exam No. 8132, when that list is established, is too tenuous to circumvent the mootness doctrine. Petitioners contend that the issues raised here should be decided in any event because similar issues recur frequently and, due to the short lives of civil service lists, have often been subjected to mootness defenses. An exception to the mootness doctrine allows courts to review important and recurring issues which, by virtue of their relatively brief existence, would be reiidercd otherwise nonreviewable. u.Petitioner has not, however, provided evidence of such other recurring, similar and important issues, sufficient to invoke this exception. -3 - [* 5] Accordingly, it is ADJUDGED that the petition is denied and the proceeding is dismiss FILED DEC 2 1 2011 NEW YORK COUNTY CLERKS OFFICE CARQL E. HUFF -4- t'

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