Wednesday, June 08, 2016

An eligible list found to be invalid prior to its "expiration" had no legal existence and thus it could not have "expired," permitting the establishment of a "corrected' list"


An eligible list found to be invalid prior to its "expiration" had no legal existence and thus it could not have "expired," permitting the establishment of a "corrected' list"
Crociata v Cassano, 2016 NY Slip Op 04212, Appellate Division, Second Department

New York City Fire Commissioner Salvatore J. Cassano declining to promote Anthony L. Crociata to the rank of Fire Marshal. Crociata sued the Commissioner and Supreme Court ordered that Crociata’s name be placed “on a special eligible list for promotion to the rank of Fire Marshal” and that that he be reconsider for such promotion.

In response to Cassano’s appeal of the Supreme Court's ruling the Appellate Division vacated the lower court's order and dismissed the proceeding in its entirety.

Although noting that “[t]he only available remedy to a Civil Service examinee who is determined to have been improperly passed over for an appointment or promotion is a judicial direction for reconsideration,” the court said that in this instance the relief awarded by the Supreme Court -- directing Cassano to reconsider Crociata’s application for promotion -- was improper, as the eligible list on which his name had appeared had expired by operation of law.

The court explained that although Crociata had commenced his lawsuit before the date on which the list had expired, “he failed to adequately allege that the list itself was constitutionally invalid,” citing Pena v NYC Civil Service Commission, 27 AD3d 293. 

In the Pena case the Appellate Division found that Pena had not challenge the validity of the original eligible list, but sought to have her name placed on a "special list," pursuant to Civil Service Law §56(3).* However, said that court, “in order to be placed on a special eligible list, [Pena] was required first to successfully challenge the validity of the list itself prior to its expiration."

The Pena court, citing City of New York v New York State Div. of Human Rights, 93 NY2d 768, said that only if Pena’s challenge to the list itself was successful would she have a remedy that comports with Article V, §6 of the New York State Constitution, in that the original list would have had no legal existence and thus could not have expired, allowing for extension of a 'corrected' list.”

In Crociata’s situation the court held that Supreme Court “erred in directing [Cassano] to place [Crociata’s] name on a special eligible list for promotion to the rank of fire marshal and reconsider him for such promotion. 

* Civil Service Law §56.3 addresses situations where the individual was disqualified and such disqualification has been reversed, or the individual's rank order on an eligible list has been adjusted, as the result of an administrative or judicial action or proceeding. In contrast, Civil Service Law §56.4 is triggered where a court of competent jurisdiction has determined that an eligible list is invalid and provides that the court may order the creation of a special eligible list having a duration of not less than one nor more than four years commencing at the time the corrected list is published.

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