The Plaintiff in this CPLR Article 78 action challenged the New York City Police Department's [NYPD], decision not select Plaintiff for appoint as a probationary police officer. Supreme Court granted NYPD's motion to dismiss Plaintiff's petition for failure to state a cause of action. Plaintiff appealed but the Appellate Division unanimously affirmed the lower court's ruling.
The Appellate Division, noting the Plaintiff failed "to allege any facts suggesting that NYPD's determination was arbitrary and capricious," explained that Plaintiff's passage of the civil service exam and other qualifications did not entitle him to an appointment.
Citing Matter of Gomez v Hernandez, 50 AD3d 404, the Appellate Division opined "Even [well-qualified] candidates such as [Plaintiff] ... can be denied [appointment] provided appropriate discretion is used within the confines of the 'one-of-three' rule in Civil Service Law §61.*
The court observed, "it is not arbitrary and capricious for an agency to provide no reason for an appointing official's exercise of discretion in declining to appoint a specific candidate".
The decision also noted that Plaintiff's "allegations of delays and irregularities in the selection process do not meet his 'heavy burden of proof, for which conclusory allegations and speculative assertions will not suffice'".
* Click HERE to access NYPPL's comments concerning the origin and application of the Rule of Three.
Click HERE to access the Appellate Division's decision posted on the Internet.