Matter of Katz v New York City Civil Serv. Commn.
2012 NY Slip Op 31026(U)
April 17, 2012
Supreme Court, New York County
Docket Number: 114005/11
Judge: Cynthia S. Kern
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
- Index Number : 114005/2011
NYC CIVIL SERVICE COMMISSION
SEQUENCE NUMBER : 001
I N D M NO.
MOTION SEQ. NO.
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Notice of MotionlOrder to Show Cause
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Upon the foregolng papers, It is ordered that this motion lo
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c SUBMIT ORDER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: Part 55
In the Matter of the Application of
ANDREW W T Z ,
Index No. 114005/11
For an Order Pursuant to Article 78
of the Civil Practice Law and Rules,
Thla Judgmenthas not been entered by the County Clerk
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for
Notice of Motion and Affidavits Annexed ....................................
Notice of Cross Motion and Answering Affidavits.......................
Petitioner Andrew Katz brought this petition pursuant to Article 78 of the Civil Practice Law
and Rules (“CPLR”) seeking to reverse and annul a determination made by respondent the New
York City Civil Service Commission (“CSC”), dated November 17,2011. In its Determination, the
CSC affirmed the determination of the New York City Police Department (“NYPD”) finding
petitioner unqualified for the position of police officer. Respondent now cross-moves to dismiss
the petition on the ground that it fails to state a cause of action. For the reasons set forth below,
respondent’s cross-motion is granted and the petition is hereby dismissed.
The relevant facts are as follows. In or around November 2009, petitioner applied for the
position of police officer with the NYPD,Exam No. 8303. On November 18,2009, the NYPD
informed petitioner via letter that he did not meet the requirements for the position of police officer
and was disqualified. According to the letter, petitioner’s disqualification was “based on the
evaluation of [his] psychological tests and interview which found personality characteristics
incompatible with the unique demands and stresses of Police Officer.” Specifically,the NYPD
found that petitioner suffered from adult Attention Deficit Hyperactivity Disorder (“ADHD”).
Petitioner then appealed his disqualification to the CSC, which conducted a hearing on
September 14,2011. At the hearing, the NYPD presented the testimony of George Kingsley, Ph.D,
of the NYPD Psychological Services Unit who recommended that the CSC sustain the
disqualification. Petitioner presented the testimony of Robert Daley, Ph.D, his own psychologist
who advised that petitioner was psychologically fit for the job as police officer and petitioner also
testified on his own behalf.
On November 17,20 11, the CSC affirmed the determination of the NYPD, writing “[,]he
Commission has carefully reviewed the entire record and considered the arguments and the
testimony presented by both parties. Based on our review, the Commission concludes that the
record at this time supports Appellant’s disqualification.” On or about December 13,201 1,
petitioner commenced this Article 78 proceeding challenging the CSC’s Determination.
On review of an Article 78 petition, “[tlhe law is well settled that the courts may not
overturn the decision of an administrative agency which has a rational basis and was not arbitrary
and capricious.” Goldstein v Lewis, 90 A.D.2d 748,749 (1’‘ Dep’t 1982). “In applying the
‘arbitrary and capricious’ standard, a court inquires whether the determination under review had a
rational basis.” HaZperin v City of New Rochelle, 24 A.D.3d 768, 770 (2d Dep’t 2005); see Pel1 v
Board. of Educ. of Union Free School Dist, No. 1 of Towns of Scarsdale & Mamaroneck,
Westchester County, 34 N.Y.2d, 222,23 1 (1974)(“[r]ationality is what is reviewed under both the
substantial evidence rule and the arbitrary and capricious standard.”) “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 facts.” PeZZ, 34 N.Y.2d at 23 1 (internal
In the instant action, the court finds that the CSC’s affirmation of the determination of the
NYPD that petitioner was unqualified for the position of police officer under Exam No. 8303 was
made on a rational basis.
In reaching its Determination, the CSC relied on the recommendation of
Mr. Kingsley, Ph.D of the NYPD Psychological Services Unit, which found petitioner to be
psychologically unfit for the police officer position. Petitioner’s only evidence to the contrary is a
letter f o his own psychologist, Mr. Daley, Ph.D, who found that, based on his examination of
petitioner, petitioner was “fully mentally competent and a suitable candidate for employment as a
police officer.” However, the fact that petitioner’s private psychologist’s opinion is contrary to that
of the NYPD’s Psychologist is immaterial. “It is not for the courts to choose between diverse
professional opinions. That is the function of the proper department heads and as long as they act
reasonably and responsibly, the courts will not interfere.” Palozzolo v. Nudel, 83 A.D.2d 539 (lst
Dept 198l), citing McCube v. Hoberman, 33 A.D.2d 547,548 (Im 1969). Moreover, the First
Department has held that “in determining whether a candidate is medically qualified to serve as a
police officer, the appointing authority is entitled to rely upon the findings of its own medical
personnel, even if those findings are contrary to those of professionals retained by the candidate.”
Matter ofCl@ ofNew York v. New York City Civ. Sew. Comrn ’n., A.D.3d 584 (lstDept 2009).
Also immaterial is the additional evidence offered by petitioner, including petitioner’s record
of service with the U.S. Navy and the letter from The Summit School which he attended as a youth.
Neither piece of evidence is probative of petitioner’s psychological suitability to be a police officer
as “[a]n appointing authority has wide discretion in determining the fitness of
candidates...particularly...in the hiring of law enforcement officers, to whom high standards may be
applied.” Matter o City of New York,61 A.D.3d at 584. In Matter of City of New York v. W C Civ.
S e n . Cornm’vr.,19 Misc.3d 1123(A) (Sup. Ct. N.Y. Cty. 2008), it was held that although the
petitioner provided evidence of his “honorable discharge from the Marines and his B average with
100 credits f o Mercy College...neither of which are insignificant achievements”, neither piece of
evidence was found to be “particularly informative.” Here, although petitioner has offered evidence
that he w s honorably discharged fiom the U.S. Navy and that he was a good student and held down
various jobs, that evidence is not probative of petitioner’s psychological fitness to be a police
officer. It was therefore not arbitrary and capricious for the NYPD to conclude, and for the CSC to
confirm, that petitioner is unqualified for the position of police officer.
Because the record clearly supports the CSC’s decision, the court finds that there is a
rational basis for its determination. It is therefore
ADJUDGED that respondent’s cross-motion to dismiss the petition is granted and the
petition is hereby dismissed in its entirety.
Thls]udgment has not been entered by the County Clerk
end notice of entry cannot be served based hereon. To
obtain entry, counsel or authorized representative mugt
appsar in pmmn at the Judgment C W s Desk (Roam