Matter of Gallo v County of Suffolk
2011 NY Slip Op 33608(U)
March 30, 2011
Supreme Court, Suffolk County
Docket Number: 33224-11
Judge: Denise F. Molia
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Index No: 33224-11
SUPREME COURT - STATE OF NEW YORK
I.A.S. Part 39 - SUFFOLK COUNTY
Hon. DENISE F. MOLIA.
In the Matter of the Application ofTHO!\1AS F.
CASE DISPOSED: YES
MOTION RID: 10/28/11
SUBMISSION DATE: 1/6/12
MOTION SEQUENCE NO.: 003:MD
For a Judgment Under Article 78 afthe Civil Practice
Law and Rules
- against COUNTY OF SUFFOLK, STATE OF NEW YORK,
and COUNTY OF SUFFOLK DEPARTMENT OF
A TIORNEY FOR PETITIONER
Suffolk County Attorney
H. Lee Dennison Building
100 Veterans MemHwy, PO Box 6100
Hauppauge, New York 11788
Ciarelli & Dempsey PC
737 Roanoke Avenue
Riverhead, New York 11901
Upon the following papers filed and considered relative to this matter:
Order to Show Cause dated October 25, 2011; Verified Petition dated October 25, 2011;
Affirmation in Support dated October 25, 2011; Exhibits A through L annexed thereto; Verified
Answer dated December 23, 2011; Verified Reply dated January 5, 2012; Administrative Return;
Affirmation in Opposition dated December 27, 2011; Affidavit dated December 16, 2011;
Exhibits 1 through 8 annexed thereto; Reply Affidavit dated January 5, 2012; Exhibits A through
C annexed thereto; Respondents' Memorandum of Law dated November 2, 2011; Respondents'
Memorandum of Law dated December 27, 2011; Petitioner's Reply Memorandum of Law; and
upon due deliberation; it is
ORDERED, that the petition of Thomas F. Gallo, Jr., pursuant to CPLR 7804(c), Civil
Service Law §50(4)(b), and Executive Law §292(21), for an Order (1) annulling and reversing
the Respondents' determination that the Petitioner was "Not Qualified-Medically", as of October
18, 2011 for the Civil Service position of Correction Officer I; (2) declaring the Petitioner
medically qualified as of October 18, 2011, for the position of Correction Officer I, and eligible
to be enrolled in the Suffolk County Police Academy class for said position, starting October 31,
2011; (3) reinstating the Petitioner to the Eligible List Number 07-5501-152 for the position of
Correction Officer I based on his examination score of SO; (4) enjoining and restraining the
Respondents from appointing any applicants to the position of Correction Officer I pending the
court's review and determination of the Petitioner herein; (5) directing and ordering the
Respondents to enroll the Petitioner into the Police Academy class starting October 31, 2011, for
the position of Correction Officer I, pending thc court's review and determination of the Petition
herein; and (6) ordering an immediate hearing on the Petitioncr's request to be enrolled in the
Suffolk County Police Academy class for said position starting October 31, 2011; is denied.
On or about January 29,2008, the petitioner, who had taken the Civil Service written
examination for the position of Correction Officer I, received notification from the respondent
Civil Service Department, that he had been successful in the overall examination and that his
position on the list of those eligible to be appointed to the position of COlTection Officer I was
based on a score of 80. The petitioner was then placed on the Certification of Eligibles List for
the position of Correction Officer I, in a place consistent with his respective score on the Civil
Service Examination for that position.
The petition alleges that although the petitioner remains eligible and available to be
appointed to the position of Correction Officer I, and enrolled in the Suffolk County Police
Academy, he has not received such appointment because he has been declared "medically not
qualified" for said position based on the purported results of the County's medical examination of
some of his medical records.
Gallo alleges that he attended a seminar for those interested in remaining on the
Eligibility List held on August 2, 2011, and at that time represented himself to be ready and
available to be enrolled. Petitioner's medical evaluation was scheduled tor August 22, 20l1, on
which date he submitted a Medical Questionnaire which acknowledged that he had three past
medical issues; i.e., seasonal asthma, surgically-repaired torn, medial meniscus, and muscle
spasms. Petitioner also advised of: "Severe muscle spasm, Dr. Frey-Dr. Nataloni," and that
during the preceding twelve months, he had been prescribed Klonopin .5 mg to sleep, Flovent
Diskus, and Albuterol inhaler. Petitioner did not reveal when he first began taking Klonopin, the
overall length of time he had been taking the drug.
On August 22, 20 II, Gallo was questioned by Dr. Chandra Moreos, who was identified as
a General Practitioner, working for the respondents' medical center. It appears that at the session
with Dr. Morcos, some of the medical records provided to the physician included documents
from a person other than the petitioner. Gallo con finned to Morcos that he had previously visited
a chiropractor, for treatment, but no adjustment. However, petitioner's chiropractic records
provided by Aquebogue Health Chiropractic revealed a course of treatment and care over the
period February 26, 2004 through July, 2011, in response to petitioner's complaints regarding
muscle spasms and pain in his low back which radiated into his lower extremities.
The respondents issued a Notification of Determination, dated September 8, 2011, with a
finding that the petitioner was "Not Qualified", and specifying the reasons to be "degenerative
disease in cervical spine, C5-6, C6~7, chronic lumbar radiculopathy. Diffuse bulging discs
w/impingement, L2-3, L3-4, L4-5. The petitioner received a copy of the notification on
September 18, 2011. Thc petitioner appealed on September 19, 2011. It appears that of the
documents received for review, Dr. Morcos may have received pages of medical records from the
chiropractor, which records applied to other persons also named Thomas Gallo. When advised of
this situation, petitioner represents that Marcos told Gallo that she would "re-evaluate" him. One
day later a second Notification ofDetennination was issued, with a finding that petitioner was
"Not Qualified", for "degenerative disease in lumbar spine", not mentioned in the first report, and
for "diffuse bulging discs with impingement L2-3, L3~4, L4-S."
Believing the evaluation to be inaccurate, the petitioner visited his treating physician
since 1993, Lilly Steel, MD., who ordered an MRl for petitioner. As a result, petitioner
underwent an MRl of his lumbar spine, and received an evaluation by Robert Galler, D.I., which
detennined in part:
"The MRI of the lumbar spine shows mild degenerative changes of
the discs from Ll to 5. There is no evidence ofhemiatcd disc causing
any significant hernial compression.
At this point, Mr. Gallo appears to be quite fit and completely
asymptomatic regarding his lumbar spine."
In addition, Dr. Steel issued a letter, dated September 23, 2011, in which she opined that the
petitioner had no "physical limitations that would prevent him from fultilling his duties as a
correction officer, and he was asymptomatic." Gallo did not indicate the length of time he had
been a patient of Dr. Steel, or the nature ufthe care and treatment provided to him by Dr. Steel.
The petitioner however, has not submitted an atlidavit from Dr. Galler or any other physician
concerning the petitioner's medical condition. It is also noted that there is no indication of the
familiarity of either physician with all of the requirements of the position of Correction Officer I.
The petitioner received a copy of his disqualification, dated October 18,2011, which
"Pursuant to your APPEAL for reconsideration, Employee Health
Services has re-evaluated your medical capability for employment
by Suffolk County for the position of: Correction Officer I.
The result of your APPEAL is that you are found to be:
Not Qualified - Medically."
Upon being found medically "not qualified," the petitioner submitted, as part of the
review process, the October 11, 2011 report from Dr. Robert Galler, D.O., to Dr. Lilly Steel,
M.D. Although there appeared to be some confusion as to whether and when this report was
reviewed by Dr. Morcos, the atlidavit of Dr. Morcos states that the Galler report was reviewed by
her on October 18, 201 'I. Based upon her review of the records in possession of the respondent,
Dr. Marcos rendered her professional opinion that the petitioner's symptomatic degenerative disc
disease would negatively impact upon his ability to perform the essential functions of the job for
which he was applying. In commencing the instant Article 78 proceeding, the petitioner alleges
that he was selectively declared to be "Not Qualified" for arbitrary, capricious, erroneous,
impermissible, or illegal considerations, and for no objective reason, but instead for a bad faith
intent to mjure the petitioner.
Placement on an eligibility list for employment or promotion docs not give a candidate
"any mandated right to appointment or any other legally protectlble interest." Cassidy v.
Municipal Civil Service Commission of New Rochelle, 37 N.Y.2d 526, 529, 375 N.Y.S.2d 300,
303. For the position of Correction Officer I, a candidate is required to be found medically
qualified in order to bTUarantee
that hclshe will be able to properly execute the duties associated
with the job. In performing medical evaluations oflaw enforcement candidates, the respondent's
doctor is guided by the standards as promulgated by the Metropolitan Police Training Council's
Medical and Physical Fitness Standards and Procedures for Police Officer Candidates, as well as
the civil service job description for the position.
The Court of Appeals has held that administrative determinations will not be disturbed if
there is a rational basis for the determination and it is neither arbitrary or capricious. The Court
"In Article 78 proceedings, "the doctrine is well settled, that neither
the Appellate Division nor the Court of Appeals has the power to
upset the determination of an administrative tribunal on a question
of fact; * * * 'the courts have no right to review the facts generally
as to weight of evidence, beyond seeing to it that there is "substantial
evidence. ,m ... "The approach is the same when the issue concerns
the exercise of discretion by the administrative tribunal: The courts
cannol interfere unless there is no rational basis for the exercise of
discretion or the action complained of is 'arbitrary and capricious. '"
The arbitrary or capricious test chiefly "relates to whether a particular
action should have been taken or is justified * * * and whether the
administrative action IS without foundation in fact." ... Arbitrary
action is without sound basis in reason and is generally taken without
regard to the facts. In Matter of Colton v. Berman this court said "the
proper test is whether there is a rational basis for the administrative
orders, the review not being of detemtinations made after quasi-judicial
hearings required by statute or law." Where, however, a hearing is held,
the determination must be supported by substantial evidence.
Rationality is what is reviewed under both the substantial evidence rulc
and the arbitrary and capricious standard." (Citations omitted)
Pel! v. Board of Education of Union Free School District No. I of tile Towns of Scarsdale and
Maaroncck. Westchester Co., 34 N.Y.2d 222, 231-232, 356 N.Y.S.2d 833, 839, 313 N.E.2d 321.
Under the circumstances presented, the petitioner has failed to demonstrate the lack of a
rational basis to support the findings of respondents' physician. Dr. Morcos made an
individualized assessment of both the petitioner and his medical records. Her evaluation and
review of the records, which included a lengthy history of treatment for his back, led Morcos to
detenninc that Gallo's history of treatment belied his assessment that he was asymptomatic.
In addition, courts have consistently recognized thc wide discretion afforded to the
various civil service commissions in determining the fitness of candidates and the exercise of
such discretion should be sustained unless clearly abused. Cassidy v. Municipal Civil Service
Commission of the City of New Rochelle, 37 N.Y.2d 526, 375 N.Y.S.2d 300; Metzger v. Nassau
County Civil Service Conunission, 54 A.D.2d 565, 386 N.Y.S.2d 890. Such discretion is
particularly necessary III the appointment oflaw enforcement officials to whom higher standards
of fitness and character may be applied. See, Shedlock v. Connelie, 66 A.D.2d 433, 435, 414
N.Y.S.2d 55, affd, 48 N.Y.2d 943, 425 N.Y.S.2d 95. In Cass;dy, the Court of Appeals explained
the rationale supporting the need for broad administrative direction as follows:
"An individual's ability to achieve a high examination score docs
not necessarily demonstrate his capacity to perform the actual duties
of a particular position. Moreover, examination success cannot reveal
any possible defects of personality, character or disposition which
may impair the performance of one's duties in a civil service position.
Hence, of necessity, the appointing authority must be cloaked with
the power to choose a qualified appointee who possesses all the
attributes necessary for responsible performance of his duties."
Cassidy v. Municipal Civil Service Commission of the City of New Rochelle, 37 N.Y.2d 526,
529,375 N.Y.S.2d 300, 302.
The courts of this statc will generally not upset an administrative determination given the
ruling of Cassidy. See, e.g.. Kornfeld v. Nassau County Civil Service Commission, 138 A.D.2d
710,526 N.Y.S.2d 523 (detenrunation that applicant was not qualified based on abnormal
electrocardiograms upheld as not arbitrary and capricious, despite contrary opinion by applicant's
physician); Shennan v. Leonard, 197 A.D.2d 581, 602 N.Y.S.2d 652 (finding that applicant was
medically unqualified because of evidence he had a shoulder susceptible to dislocation upheld as
not arbitrary and capricious); City of New York v. New York City Civil Service Commission, 61
A.D.3d 584, 877 N .Y.S.2d 322 (appointing authority has the discretion to rely on the findings of
its own medical personnel, even where the determination is contrary to that of a professional
retained by the applicant).
In light of the above, including the medical review conducted by the respondents'
physician, the respondents' detcrrmnation to disqualify the petitioner from the Suffolk County
Correction Officer application process has been demonstrated to have a rational basis, and has
not been shown to have been arbitrary or capricious. Accordingly, the petition of Thomas F.
Gallo, Jr., is dismissed.
The foregoing constitutes the Order of this Court.
Dated: March 30, 2011
8oIl. Dedse F. MoIia
HON. DENISE F. MOLIA