In this CPLR article 78 proceeding, petitioner seeks to reverse a determination of the New York City Fire Department, dated September 29, 2005, which denied his application for employment. It is petitioner's contention that respondents' refusal to select him for appointment to the title of firefighter was arbitrary and capricious.

In support, petitioner maintains that his examination results were well above average, i.e., that he received a total overall raw score of 46 out of 50; that the average score was 39; and that his adjusted final average was 101.921. In further support, petitioner submits evidence of other pertinent credentials, e.g., his certification as a New York State Emergency Medical Technician or Certified First Responder. Nevertheless, petitioner was denied appointment and is presently ineligible for further certification from List No. 1200.

Although respondents' letter dated September 29, 2005 provides no explanation for the denial, petitioner claims that it was the wrongful consideration of his prior criminal record. According to petitioner, his criminality consisted of a single (unspecified) violation that was ultimately dismissed. Petitioner claims that this purported criminal activity is an insufficient basis upon which to predicate ineligibility, since there is no nexus between the alleged criminal conduct and the responsibilities of a New York City Firefighter. [*2]

In cross-moving to dismiss the petition pursuant to CPLR 3211(a)(7) and 7804(f), respondents contend that petitioner has failed to set forth sufficient facts to establish that respondents' decision was arbitrary, capricious, an abuse of discretion or made in bad faith. In support, respondents argue that a candidate on an eligible list has no vested right or legally protectable interest in appointment, citing article V, §6 of the New York State Constitution and Civil Service Law §61, neither of which mandates the selection of the individual with the highest ranking on an eligible list. Rather, the selection is to be made from one of the top three candidates. Thus, it is claimed that the refusal to appoint petitioner was made in conformity with the so-called "one-in-three" rule.

Finally, respondents note that it is only where the appointing agency provides a reason for its decision that the court may consider same in assessing whether it acted arbitrarily (citing Matter of Redman v New York City Tr. Auth, 14 AD2d 911). However, where, as here, no reason is provided, respondents maintain that the decision of the appointing body may not be disturbed. Accordingly, the petition is said to contain no legally sufficient ground for reversal. In this regard, respondents assert that petitioner's conclusory assertion that he was not appointed due to his criminal record is wholly speculative and not entitled to any weight.

It is well established that a person whose name appears on an eligible list does not have a vested right of appointment (see Matter of Frank v Tishelman, 72 AD2d 604), i.e., he or she has no enforceable right to be appointed to an available position (see Matter of Yates v Grecco, 85 AD2d 817). Examination scores are not intended to be the sole determinant of fitness, as "the appointing authority must be cloaked with the power to choose a qualified appointee who possesses all the attributes necessary for the responsible performance of his duties" (Matter of Cassidy v Municipal Civ. Serv. Commn., 37 NY2d 526, 528-529). Moreover, Civil Service Law §61(1) expressly permits an agency to select any one of the three persons standing highest on the eligible list.

Contrary to respondents' contention, however, administrative actions taken arbitrarily or in bad faith will not be tolerated (see Matter of D'Amico v Leonard, 64 NY2d 626, 627). Nevertheless, the petitioner in such circumstances bears a heavy burden of proof (see Matter of Aladin v Schultz, 176 AD2d 205) for which conclusory allegations and speculative assertions will not suffice (see Matter of Knight v County of Nassau, 27 AD3d 470).

Here, petitioner's allegation that he was denied appointment due to the agency's wrongful consideration of a prior criminal record is without any factual basis before the Court (see Kaminsky v Leary, 33 AD2d 552, 553, affd 28 NY2d 959). In fact, the factual allegations at bar are even less substantial than those deemed inadequate in Kaminsky, where information from an unidentified police officer was said to underlie the claim that the consideration of the arrest records of the officer-candidate's brothers caused his rejection as a probationary patrolman. In this case, no source has been cited in support of petitioner's similar allegations.

Accordingly, it is

ORDERED, that respondents' cross motion to dismiss the petition is granted and [*3]the proceeding is dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,

Dated: April 20, 2007/s/ Hon. Philip G. Minardo

J.S.C.