In this Article 78 proceeding petitioner seeks judgment pursuant to Article 78 of the CPLR annulling the determination of the respondent that petitioner was disqualified from employment as a Nassau County Police Officer by reason of his alleged failure to meet the psychological requirement of the position; declaring that respondent acted in an arbitrary and capricious manner when it disqualified petitioner from the position of Police Officer and ordering the respondent to appoint petitioner to the position of Nassau County Police Officer. Respondent has moved to dismiss the petition pursuant to CPLR §7804(f).

Petitioner underwent a psychological screening process by two psychologist appointed by the respondent on two separate occasions, April 12, 2006 and May 2, 2006. Petitioner alleges that each session with both psychologists lasted less than one hour and were unduly focused on certain prior arrests of the petitioner none of which resulted in any criminal conviction. Petitioner was notified by respondent in a letter dated June 13, 2006 of his disqualification for Police Officer "for failure to meet the psychological requirement of that position." On June 21, 2006 petitioner notified respondent of his intention to appeal his disqualification. As part of his appeal, petitioner underwent a psychological examination of his own choosing by psychologist Robert Daley on June 27, 2006 and July 25, 2006. Dr. Daley found no evidence on the part of petitioner that he exhibited a "pattern of dysfunctional behavior or significant maladaptive personality traits." Dr. Daley further opined that petitioner was "fully mentally competent and suitable for employment as a police officer." Thereafter, at the respondent's request and as part of the appeal process, petitioner was further evaluated on August 24, 2006 by psychiatrist Dr. Julius Mendel who found that petitioner lacked the skills necessary to carry out the functions of a Police Officer and recommended that the appeal be denied. On September 5, 2006, petitioner was notified by respondent that, after a review of all the materials submitted with his qualifications, that respondent maintained its original determination.

It is well settled that the standard for judicial review of an administrative determination pursuant to CPLR Article 78 is limited to an inquiry into whether the agency acted arbitrarily and/or capriciously, i.e., without any sound basis in reason (Pell v. Board of Education of Union Free School District No. 1, 34 NY2d 222). An appointing authority such as respondent Commission has wide discretion in determining the fitness of candidates. This discretion is particularly broad in the hiring of persons for position in law enforcement, to whom high standards must be applied. (Matter of Verne v. Suffolk County Department of Civil Service, 5AD 2d 498; Needleman v. County of Rockland, 270 AD2d 423). Courts will not interfere with the discretion of the appointing authority to determine the qualifications of candidates unless the determination warrants judicial intervention on the grounds that it is irrational and arbitrary. (Winnegar v. County of Suffolk, 13 AD3d 382). The fact that the opinion of petitioner's privately retained expert is contrary to that of respondent's expert is not controlling. (Matter of [*2]Kerye v. Nassau County of Civil Service Comm., 143 AD2d 669). It is not for the courts to choose between diverse professional opinions. (Matter of Brussel v. Lu Grande, 137 AD2d 686). Therefore, where there is any rational basis or credible evidence in support of an agency's determination, the decision will be upheld. (Matter of Curcio v. Nassau County Civil Service Commission, 220 AD2d 412).

This Court, having examined the proofs submitted by both petitioner and respondent, finds that the commission's determination was not irrational but rather supported by substantial evidence. Additionally, the court finds that respondent has complied with New York Civil Service Law 50 (4).

Accordingly, it is hereby ordered that the petition pursuant to CPLR Article 78 is denied and the motion to dismiss pursuant to CPLR §7804(f) is granted.

This constitutes the decision and order of this Court.