The petitioner seeks an order pursuant to CPLR Article 78 vacating and declaring null and void and of no force or effect the respondents Nassau County Civil Service Commission, the Police Commissioner of Nassau County, and the Nassau County Police Department's determination rendered on September 5, 2006, and served on the petitioner on September 7, 2006, directing the respondent Nassau County Civil Service Commission and the Police Commissioner of Nassau County to find the petitioner qualified forthwith, and to appoint the petitioner as a Nassau County Police Officer on the grounds the respondents' determination to find the petitioner disqualified was made in bad faith, and was arbitrary and capricious, and an abuse of discretion, and was not supported by substantial evidence, and was in violation of lawful procedure in that the petitioner was denied a reasonable opportunity to a fair hearing as to the lack of specificity, vagueness, and failure to charge the petitioner with specific violations of law thus violating the petitioner's right to due process of law under the United States and New York State Constitutions in that such charges are void for vagueness as applied to petitioner, and the determination to find the petitioner disqualified as a police officer was an abuse of discretion and was and is shocking to the conscience and disproportionate to the sense of fairness. The respondents deny the most of the allegations of the petitioner, and objects in points of law. [*2]

The petitioner submitted an application for Civil Service Examination No. 3000 for the position of Nassau County Police Officer, and took the written examination in or about January 2003. The petitioner was notified he passed the written examination with a score of 87.060, and the petitioner was canvassed for the position, and in December 2005, the petitioner began "Phase I" of the background investigative process, including an interview with an investigator from the Nassau County Police Department's Applicant Investigation Unit, and an extensive mandatory background investigation seeking wide-range of personal information, including the petitioner's arrest record, driving history, illegal drug use, delinquent debts and judgments, as well as family and marital status. The petitioner's initial general review was completed by Investigator Sergeant John Ficco on December 29, 2005, and submitted to the Commission for review and action. On January 17, 2006, the Commission, at its regularly scheduled meeting, approved the petitioner's application for the subject written examination. Thereafter, the petitioner began "Phase II" of the investigative process, including a more in-depth background investigation, as well as comprehensive medical and psychological evaluations. The respondents allege the initial general review revealed, among other things, the petitioner was arrested in 2001 by the Nassau County Police Department, and charged with disorderly conduct consisting of being at a party of numerous youths, who were checked for identification by the police because of apparent underage drinking, and the petitioner apparently in an intoxicated condition attempted to walk past the officers without producing identification, and the officers advised the petitioner to remain in the rear yard until checked, the petitioner cursed at the officers, continued to walk past them, and spat at the arresting officer. The petitioner has submitted letters, in the petition, from Tricia DeFantis, Justin Bencosme, and Shauna Poleski, who were allegedly at the party. DeFantis states, in an unsworn statement, the petitioner stood to the side against the fence, and DeFantis was about 12 feet away from the petitioner when DeFantis saw a police officer, without provocation, punch the petitioner across the face, twice or thrice, and the petitioner was possibly knocked over the fence, landed went to the ground where the petitioner was handcuffed and DeFantis heard the police officer taunt the petitioner by calling the petitioner a "little punk." DeFantis also states the petitioner did not curse nor spit at the officer, but only asked, "What did I do?" Bencosme states, in an unsworn statement, the party was crowded with youths, and Bencosme stood outside, on the driveway side of the house when the police officers arrived who then deployed around the premises. Bencosme also states the tallest officer, husky approached the petitioner, who stood by the driveway fence, and they engaged in conversation which Bencosme did not hear, even though Bencosme was only five to 10 feet away from them. Bencosme also states, for no apparent reason, that officer pushed and struck the petitioner knocking the petitioner over the fence, and about three of the other officers then reached over, and pulled the petitioner back over the fence, and the officers broke up the party. Poleski states, in an unsworn statement, hearing some of the partygoers' scream the police were there, the police entered the yard, and began to check identifications. Poleski also states seeing an officer approach the petitioner who was standing against the fence, and the officer within two feet of the petitioner yelled loudly, "you spit on my foot," and the officer took the petitioner's head, and smashed it into the fence twice, and the officer pushed the petitioner to the other side of the driveway where the officer smashed the petitioner into the house. Poleski also states there was no reason for the officer to have done that to the petitioner. [*3]Poleski also states never seeing the petitioner spit at the officer, speak to the officer, raise his arms, nor make any other threatening motions toward any of the officers.

When Investigator Sergeant Ficco asked the petitioner about that incident, the petitioner denied cursing or spitting at the Officer, so Investigator Sergeant Ficco contacted the arresting officer, who corroborated the incident report. Investigator Sergeant Ficco investigation also revealed the petitioner was psychologically disqualified for the position of Police Officer by the New York City Police Department in 2004. Investigator Sergeant Ficco uncovered, during the petitioner's oral interview with the New York City Police Department's staff psychologist, the petitioner denied cursing or spitting at the police officers effectuating the arrest on September 3, 2001. However, on further inquiry back then by the New York City Police Department, the petitioner admitted to spitting on the arresting officer.

At its regularly scheduled May 9, 2006 meeting, the Nassau County Civil Service Commission reviewed general review supplement, and disqualified the petitioner from Civil Service Examination No. 3000 for the position of Nassau County Police Officer based on "falsifying material facts and disrespect for the process of law." This decision was resolution number e-441/2006. The petitioner was notified of the disqualification by letter dated May 16, 2006, and advised an appeal of the findings of the Nassau County Civil Service Commission could be done, and to submit information in opposition to the disqualification. The petitioner's attorney submitted a letter dated May 26, 2006, to the Nassau County Civil Service Commission appealing the determination, and requesting the release of specific information on which the Nassau County Civil Service Commission based its decision. At its June 9, 2006 meeting, the Nassau County Civil Service Commission reviewed the May 26, 2006 letter, adopted resolution number e-516/2006, and found the petitioner remained disqualified, and directed its Executive Director tow write to the petitioner's attorney informing counsel of the specifics upon which the Nassau County Civil Service Commission based its decision to disqualify the petitioner. The petitioner's attorney submitted letters dated July 25, 2006, August 25, 2006, and August 28, 2006, to the Executive Director of the Nassau County Civil Service Commission. At its regularly scheduled meeting August 1, 2006, the Nassau County Civil Service Commission adopted resolution e-707-2006 indicating the appeals process was completed as of June 1, 2006. The Executive Director of the Nassau County Civil Service Commission notified, by letter dated August 8, 2006, the petitioner's attorney of the decision by the Nassau County Civil Service Commission. The Nassau County Civil Service Commission, in response to the letters dated August 25, 2006, and August 28, 2006, by the petitioner's attorney, adopted resolution e-792-2006 acknowledging receipt of those letters, determined the petitioner remained disqualified. The instant proceeding was commenced on January 4, 2007.

The verified petition dated January 4, 2007 states, among other things, the petitioner answered all questions on the application to the Nassau County Police Department and any other documents that were required to be completed as part of the application in a totally truthful and forthright manner, and at no time falsified any information or gave deceptive answers in either the application or any of the other documents the petitioner was required to complete. The petitioner states vehemently denying the allegation of the incident where it was alleged the petitioner spat at any police officer. The petitioner concedes receiving a letter dated May 16, 2006, from the Nassau County Civil Service Commission which stated the petitioner [*4]was disqualified from becoming a Nassau County police officer for falsified material facts, and display of disrespect for the process of law and order. The petition also points to other aspects of the petitioner's allegations with respect to the circumstances of the process regarding the application to become a Nassau County police officer

The Deputy Nassau County Attorney states, in an affirmation dated February 20, 2007, in support of the verified answer, the petitioner never sought a subsequent extension to perfect the appeal of the Nassau County Civil Service Commission decision which is final and binding. The respondents' attorney contends the Nassau County Civil Service Commission decision was reasonable, rational and proper as a matter of law. The respondents' attorney asserts the respondents have complied with the applicable laws. The respondents' attorney avers the petitioner is not entitled to a hearing in connection with the disqualification. The respondents' attorney claims, although this Article 78 proceeding is barred by the statute of limitations, the petitioner has received a sufficient hearing for due process purposes through this Article 78 proceeding.

The petitioner's attorney states, in a reply affirmation dated March 16, 2007, to the respondents' opposition to the petitioner's application, after receiving the initial determination of the Nassau County Civil Service Commission dated May 9, 2006, the petitioner's counsel wrote a letter dated May 26, 2006, to the Nassau County Civil Service Commission requesting the petitioner be supplied with the details and the basis for the decision. The petitioner's counsel received a letter dated June 13, 2006, from the Executive Director of the Nassau County Civil Service Commission, which advised the petitioner the reason for disqualification related to the petitioner's psychological evaluation, and more particularly, a September 3, 2001 incident in someone's Nassau County backyard where a party was held, and the petitioner allegedly cursed and spat at a police officer who was checking identification. The petitioner's counsel points out although the petitioner denied the incident, and stated it was false, the Nassau County Civil Service Commission relied solely on the officer's statement. The petitioner's counsel claims, after receiving that information, the petitioner's attorney spoke with the petitioner and the Executive Director of the Nassau County Civil Service Commission, and informed the Executive Director of the Nassau County Civil Service Commission that petitioner's counsel would be submitting character letters. The petitioner's counsel asserts the Executive Director of the Nassau County Civil Service Commission advised the petitioner's counsel whatever was submitted would be provided to the entire Nassau County Civil Service Commission, so on July 25, 2006, the petitioner's counsel wrote another letter to the Executive Director of the Nassau County Civil Service Commission, and attached letters from Tricia DeFantis, Justin Bencosme, and Shauna Poleski, who allegedly observed on the party incident, and a report from Dr. Robert Daley. The petitioner's counsel indicates the Nassau County Civil Service Commission on August 8, 2006 advised petitioner's counsel the petitioner's appeal process had been completed as of June 2, 2006, and petitioner's counsel wrote another letter on August 25, 2006, to the Executive Director of the Nassau County Civil Service Commission about the completed date for the appeal process, and provided additional material, including letters from professional people who knew the petitioner, and worked with the petitioner over an extended period of time, and doctors' reports. The letters of recommendation came from a Chief Petty Officer of the United States Coast Guard Reserve, a Second Class Petty Officer of the United States Coast [*5]Guard, a Lieutenant of the Newark, New Jersey Police Department, the Maintenance Supervisor with the Town of North Hempstead, New York, where the petitioner was employed from May 2005, a Commissioned Officer of the United States Coast Guard Reserve, who is also a Lieutenant with Morris Town Bureau of Police, and Steven Mannion, Esq., a police legal advisor and law enforcement defense attorney representing and advising state, county and local law enforcement agencies and officials. The petitioner's counsel asserts the Executive Director of the Nassau County Civil Service Commission again advised the petitioner's counsel, in a conference, whatever was submitted would be provided to the Nassau County Civil Service Commission for its consideration and determination at its next meeting. The petitioner's counsel states writing another letter on August 28, 2006, to the Nassau County Civil Service Commission, and submitted additional letters from several people who knew the petitioner quite well. The Executive Director of the Nassau County Civil Service Commission sent a letter on September 5, 2006, which indicated on August 29, 2006, the Nassau County Civil Service Commission conducted a thorough review of all of the material submitted, including the letters and reports contained in the petitioner counsel's letters dated August 25, 2006, and August 28, 2006, and advised the petitioner's counsel the disqualification remained. The petitioner's counsel contends the respondents' contention the Article 78 proceeding is barred by the statute of limitations is baseless. The petitioner's counsel asserts the decision of the Nassau County Civil Service Commission was unreasonable and irrational as a matter of law.

CPLR 7801 (1) provides:

Relief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under this article. Wherever in any statute reference is made to a writ or order of certiorari, mandamus or prohibition, such reference shall, so far as applicable, be deemed to refer to the proceeding authorized by this article. Except where otherwise provided by law, a proceeding under this article shall not be used to challenge a determination: which is not final or can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner's application unless the determination to be reviewed was made upon a rehearing, or a rehearing has been denied, or the time within which the petitioner can procure a rehearing has elapsed.

Unless the court grants an order to show cause to be served in lieu of a notice of petition at a time and in a manner specified therein, a notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least twenty days before the time at which the petition is [*6]noticed to be heard [emphasis added].

Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue.

The petitioner challenges the May 9, 2006 disqualification for the position of police officer. The respondent Nassau County Civil Service Commission's determination became final and binding on June 13, 2006, when the petitioner's attorney received the letter of the Executive Director of the Nassau County Civil Service Commission notifying that the original notification of disqualification stood notwithstanding the petitioner's contention it became final and binding on September 5, 2006. "In a proceeding to review a government agency's determination, the determination becomes final and binding, and the statute of limitations begins to run, when the aggrieved party is notified of it [citations omitted]" (Youngelman v. New York City Transit Authority, 303 AD2d 751, 751-752, 757 NYS2d 331). Since the petitioner did not commence this action until on January 4, 2007, by filing a request for judicial intervention, the notice of petition and verified petition , the action is time-barred (see CPLR 217; CPLR 7804 [f]).

22 NYCRR 130-1.1a (a) and (b) provide:

Every pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney, or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party. By signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c) of this Subpart.

Accordingly, the petition is denied. This decision shall constitute the order and judgment of the Court.

So ordered. [*7]

Dated: May 3, 2007

E N T E R:

______________________________

J. S. C.