Matter of Croghan v City of New York

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Matter of Croghan v City of New York 2013 NY Slip Op 30833(U) April 22, 2013 Supreme Court, New York County Docket Number: 103789/12 Judge: Manuel J. Mendez 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. SCANNED ON412412013 I I [* 1] SUPREME COURT OF THE STATE OF NEW YORK M A N U E L J. MENDEZ PRESENT: - NEW YORK PART COUNTY 13 Justice In the Matter of the Application of INDEX NO. MOTION DATE ROBERT J. CROGHAN, as Chairman of Organization of Staff Analysts, GALINA IVANOVA, DAWN LAKE, CARL WORRELL, VINCENT NOTO and JOSEPH CONNELL, individually and on behalf of all others similarly situated, MOTION SEQ. NO. 103789112 03-13-2013 00 1 MOTION CAL. NO. Petitioners, -against - .. 2 z ! too ~$ oe THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF HOUSING, PRESERVATION 81 DEVELOPMENT, MATTHEW M. WAMBUA, as Commissioner, THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, EDNA WELLS HANDY, as Commissioner, Respondents. For a Judgment and Order Pursuant t o Article 78 of the Civil Practice Law and Rules. PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1-3 Answering Affidavits - Exhibits 4-6 cross motion Replying Affidavits Cross-Motion: 7 X Yes - 8,B - 10 No Petitioners brought this Article 78, proceeding seeking t o have this Court find and declare that Respondents have acted arbitrarily and capriciously and for a permanent injunction based on violations of the merit and fitness for employment requirement set forth in Article V, Section 6 of the New York State Constitution and Civil Service Law 5 5 52 & 61. Petitioners also seek a judgment reversing and annulling all prior reclassifications of the Civil Service title, Associate Staff Analyst ("ASA") positions including those identified in the Petition; restoring GALINA IVANOVA, DAWN LAKE, CARL WORELL and VINCENT NOTO t o eligible list No. 0507: and making additional permanent ASA appointments. Respondents opposes the petition and cross-move t o dismiss this proceeding pursuant t o CPLR §7804[fl and CPLR P3211,claiming that the petition is barred by the applicable statute of limitations and there is no basis t o find that their actions were arbitrary and capricious. [* 2] In December of 2009, the New York City Department of Citywide Administrative Services (hereinafter referred t o as "DCAS") noticed a promotional examination for the ASA title under Examination No. 0507, and an open competitive examination for the ASA title under Examination No. 0107. On February 20, 2010, the promotional examination was administered. The resulting list of eligible applicants for the ASA title was certified on January 27, 2012, with each City agency having separate lists. The New York City Department of Housing Preservation and Development (hereinafter referred t o as "HPD"), listed 22 eligible individuals for permanent promotion t o ASA title (Pet. Exh. B). On February 20, 2010, the open competitive examination was administered for the ASA title. The open competitive examination list was certified on April 2, 2012, and it had 2,178 eligible individuals listed for appointment (Pet. Exh. C). Effective April 9, 2012, HPD promoted 14 of the 22 eligible individuals for permanent promotion t o an ASA title. One of the eligible individuals was no longer employed by the City, and of the remaining seven candidates eligible for permanent promotion t o ASA title, five are petitioners in this proceeding. Galina Ivanova, Dawn Lake, Carl Worrell, Vincent Noto and Joseph Connell (hereinafter referred t o as the "Individual Petitioners") held the title of Staff Analyst (SA) at HPD and are members of the Organization of Staff Analysts (hereinafter referred t o as "the union"). The Individual Petitioners were on the permanent promotion list as 6; follows; Galina lvanova #8; Dawn Lake # I 2; Carl Worrell #IVincent Noto #18; and Joseph Connell #22. By letter dated April 9, 2012, Respondents advised the Individual Petitioners that they were considered but not selected for appointment t o a vacancy (Cross-Mot. Exh. 2). By letter dated May 11, 2012, Respondents sent a "Corrected" notice indicating that the Individual Petitioners were considered and not selected for appointment t o three separate vacancies and were ineligible for certification t o HPD for the ASA title (Cross-Mot. Exh. 3). On May 16, 2012, the union sent a letter to HPD on behalf of the Individual Petitioners seeking t o have them reinstated t o the ASA promotional list (Pet. Exh. D). On June 25, 2012, HPD sent the union a letter indicating Civil Service Rules were followed, and the lists were closed t o the individual petitioners. On September 17, 2012, the Petitioners commenced this proceeding. The New York State Constitution, Article V, Section 6, requires that appointments and promotions made in the Civil Service be based on merit and fitness, which t o the extent it is practicable, is t o be ascertained by competitive examination (Benson v. New York State Department of Civil Service, 296 A.D. 2d 816, 745 N,Y.S. Dept., 20021). Article V, Section 6, is interpreted in conjunction 2d 329 [N.Y.A.D. 3rd with the Civil Service Law t o provide employees with "greater merit and ability" (Gallagher v. City of New York, 307 A.D. 2d 76, 761 N.Y.S. 2d 37 [N.Y.A.D. 1'' Dept., 20031). The New York State Constitution, Article V, Section 6 and the Civil Service Laws are not required t o remove all agency discretion and other factors may be taken into account. DCAS may select candidates from the promotional list first and then include names from the open competitive list established for the same title or position (Gallagher v. City of New York, 307 A.D. 2d 76, supra, pgs. 83-84). Pursuant t o Civil Service Law §52[11, vacancies are required t o be filled, "by persons holding competitive class titles in a lower grade in the department in which the vacancy exists, grovided that such lower grade positions are in direct line of promotion...", however, exceptions can be made if it is impracticable or against public [* 3] interest t o do so, as when responsibilities in different titles overlap causing them t o be related (Gallagher v. City of New York, 307 A.D. 2d 76, supra at pgs. 81-82). DCAS is an administrative agency and pursuant t o Civil Service Law 852, it has authority and the discretion t o make and adjust classifications. Judicial review of DCAS classifications is limited t o determinations of whether there was a rational basis for the agency's conclusions. It is rational t o reclassify titles and alter the lines of promotion based on the actual roles involved and t o encourage "competitive and qualified personnel" (Hughes v. Doherty, 5 N.Y. 3 d 100, 833 N.E. 2d 228,800 N.Y.S. 2d 85 [20051). Civil Service Law §61I requires the administrative agency t o select three individuals from a list of eligible candidates t o fill one vacancy. There is no vested right t o appointment or promotion based on a person's name appearing on a list of candidates (Archer v. Riccio, 201 A.D. 2d 395, 6076 N.Y.S. 2d 666 [N.Y.A.D. la' Dept., 19941). The "rule of three" affords an appointing authority the flexibility t o choose amongst reachable candidates t o determine eligibility. A n agency may take factors other than examination scores into account provided the administrative actions are not taken in bad faith or arbitrary. There is a "heavy burden" on the petitioner t o establish the agency determination was rendered arbitrarily or in bad faith, "conclusory allegations or speculative assertions will not suffice" (Gomez v. Hernandez, 50 A.D. 3d 404, 858 N.Y.S. 2d 8 [N.Y.A.D. 1'' Dept., 20081 and Brynien v. New York State Dept. Dept., 20101). Of Civil Service, 7 9 A.D. 3 d 1501, 913 N.Y.S. 2d 411 [N.Y.A.D. 3rd A reclassification of titles is lawful, "...where it conforms the civil service structure t o the situation which actually existed in operation of the agency prior t o the (Joyce v. Ortiz, 108 A.D. 2d 158, 487 N.Y.S. 2d 7 4 6 [N.Y.A.D. 1" reclassification Dept., 19851). A civil service title may be abolished in good faith based on economy and efficiency, but not as subterfuge for avoiding statutory protections provided to civil servants (Gorman v. Von Essen, 294 A.D. 2d 209, 7 4 2 N.Y.S. 2d 235 [N.Y.A.D. 1" Dept., 20021). Reclassification is not t o be used as a means of circumventing the constitutional mandates for appointment t o a civil service title or validating out of title work (Matter of CSEA v. County of Duchess, 6 A.D. 3d 701, 7 7 5 N.Y.S. 2d 539 [N.Y.A.D. 2"d Dept., 20041 and Criscolo v. Vagianelis, 50 A.D. 3 d 1283, 856 N.Y.S. Dept., 20081). 2d 265 [N.Y.A.D. 3rd ..." Petitioners, on information and belief state, that on December 16, 201 1, after the promotional list was established but before appointments were made, there were 35 provisional employees working in ASA positions within HPD. As of September 4, 2012, only t w o provisional positions remained because rather than make permanent appointments t o those provisional ASA positions Respondents reclassified thirty of the positions t o other titles. Petitioners also contend that Respondents have reclassified existing positions in the Civil Service ASA title t o avoid permanent appointments from the Promotional Examination Civil Service List of eligible individuals at the HPD. Petitioners claim that by manipulating the Civil Service Law one-in-three rule and not selecting or restoring Petitioners for appointment from the Promotional Examination Civil Service List, Respondents are avoiding making permanent appointments and basing their determinations solely on financial and other impermissible considerations instead of merit and fitness. [* 4] Pursuant t o CPLR 5321 1[a][51, an action may be dismissed based on a claim of the expiration of the statute of limitations. Pursuant t o CPLR 0217111, A proceeding against a body or officer must be commenced within four months after the determination t o be reviewed becomes final and binding (Best Payphones, Inc. v. Department of Information, Technology and Communications of the City of New York, 5 N.Y. 3d 30,832 N.E. 2d 38,7 9 9 N.Y.S. 2d 182 120051). A determination is final and binding when an individual is aggrieved by it. An individual becomes aggrieved by a determination after it is clear that there is no expectation or reason t o anticipate a change in circumstances (Cangro v. Mayor of the City of New York, 167 A.D. 2d 258, 561 N.Y.S. 2d 7 5 9 [1990]). The four month statute of limitations period runs from receipt of the adverse determination (Matter of Rocco v. Kelly, 20 A.D. 3 d 364, 799 N.Y.S. 2d 469 [N.Y.A.D. 1" Dept., 20051). The statute of limitations cannot be circumvented (In re Long Island Power Authority Ratepayer Litigation, 47 A.D.3d 899, 8 5 0 N.Y.S.2d 609 [N.Y.A.D. 2"d Dept., 20081). Respondents contend there is no basis t o maintain this proceeding because their actions were not arbitrary and capricious and Petitioners allegations are speculative and conclusory based solely on subjective statements. As administrative agencies they had authority t o make determinations as t o filling job titles and appointments as long as they relied on merit and fitness. Respondents claim the statute of limitations began t o run from the April 9, 2012,when letters were mailed t o the Individual Petitioners notifying them that they would not be promoted and the "corrected" letters do not alter the final and binding determination. Alternatively, Respondents contend that even if the corrected notice letters dated May 11, 2012 commenced the time period for statute of limitations purposes, the Petitioners were called and made aware of the final determination removing them from the eligible list, prior t o the union's May 16, 2012 letter. Petitioners oppose the cross-motion claiming that the May 11, 2012, "corrected" letters indicate a final determination that the Individual Petitioners have been removed from the certified list of eligible employees for the promotional ASA titles. The four month statue of limitations begins to run upon receipt of the May 11, 2012, final adverse determination, not the date it was prepared. Petitioners claim that copies of the post-marked envelopes for the May 11, 2012 letters sent t o Galina lvanova and Carl Worrell (Aff in Opp. t o Cross-Mot. Exh. A) have a May 17, 2012 stamp on the postmarked envelopes establishing that this proceeding commenced on September 17, 2012, is timely. Upon review of all the papers submitted this Court finds that the Petitioners have not established a basis for the relief sought in Article 78 proceeding, or for the declaratory and injunctive relief. The assertions that job titles were reclassified for financial purposes are stated as, "on information and belief," and based on subjective statements, as such, they are conclusory and speculative. DCAS has authority t o reclassify titles including for economical reasons as long as the mandates of the civil service system are not circumvented. Petitioners have not established that Respondents failed t o follow the "rule of three," or that the failure t o promote the Individual Petitioners was arbitrary and capricious. Respondents chose 14 individuals from 22 named eligible employees on the promotional list before relying on the open competitive list. [* 5] This Court finds that the May 11, 2012 "corrected" letters reflect the Respondents' final and binding determination and this proceeding commenced on September 17, 2012, is not time-barred. The May 11, 2012 letters clearly state for the first time, that the Individual Petitioners were "ineligible.. .for further certification" by HPD. Respondents failed t o provide affidavits from an individual attesting t o the manner in which any of the letters were prepared and mailed t o the Petitioners. Respondents also fail t o state the date the May 11, 2012, letters were mailed t o the Petitioners. Respondents do not state the manner in which, or the dates prior to May 16, 2012, that all of the Petitioners were contacted by telephone. Accordingly, it is ORDERED and ADJUDGED that the Amended Article 78 Petition and related Declaratory Judgment and Injunctive relief is denied, and it is further, ORDERED that the cross-motion t o dismiss the petition pursuant t o CPLR 5321 1, is granted, and this proceeding is dismissed. ENTER: MANUEL J. MENDEZ, Dated: April 22, 2013 Check one: MANUEL .. IMENDEZ 0 NON-FINAL DISPOSITION 0 DO NOT POST 0 REFERENCE X FINAL DISPOSITION Check if appropriate: YNFILED JUDGMENT This judgment has not been entered by the County Clerk and noti& o entry cannot be served based hereon. To f obtain entry, counsel or authorized representative mud appear in person at the Judgment Cbrk's Desk (F(0om 141B). J.S.C.

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