The motion by pro se petitioner for an order pursuant to C.P.L.R. Article 78, reinstating petitioner's eligibility to be hired as a New York City Correction Officer on the ground that the Department of Correction's decision not to select him for appointment to one of three (3) separate vacancies was arbitrary, capricious, and contrary to law is denied and the petition is dismissed.

Petitioner states that on or about March 12, 2010, the Department of Correction ("DOC") Assistant Commissioner of Personnel, Alan Vengersky, notified petitioner that the DOC considered, but chose not to select him for appointment or promotion to three (3) separate vacancies. The petitioner states that he received this letter via Certified Mail. (Petitioner's Exhibit A). However, the petitioner asserts that the notice from Mr. Vengersky was sent after he took and passed Correction Officer Exam No. 8313 with a score of 76.250 and was assigned list number 289. (Petitioner's Exhibit B). Additionally, petitioner entered as his Exhibit C an incomplete, unsigned stipulation between himself and the DOC, stating that the DOC terminated him from his position as a provisional Supervisor of Stock Workers and that petitioner agreed never to seek employment with the DOC again at anytime in the future. (Petitioner's Exhibit C).

In response to the petitioner's motion, the respondents, The Office of the Comptroller, the City of New York, and New York City Department of Correction ("DOC") cross-move to [*2]dismiss the petition, pursuant to Rule 3211(a)(7)^[FN1] and Section 7804(f)^[FN2] of the C.P.L.R. Respondents contend that the DOC's choice not to hire the petitioner was not arbitrary, capricious, or contrary to law because the relief the petitioner seeks is legally impossible. Respondents argue that Petitioner's petition fails to state a cause of action to which the court may grant relief because Petitioner seeks employment with the DOC using an expired Correction Officer exam number (a passing grade on the Correction Officer exam allows test-takers to become eligible for employment with the DOC as Correction Officers). Respondents assert that appointment from an expired list is a legal impossibility, thus petitioner's petition is moot and the relief request therein must be denied.

In an affidavit in support of respondents' cross motion to dismiss, Martha G. Pierre, Director of Certification of the Department of Citywide Administrative Services ("DCAS") states that DCAS is in charge of administering civil service exams in the City of New York for civil service titles, including the title of Correction Officer. (Pierre Aff., para. 3). In her affidavit, Pierre states that after the administration of a civil service exam, the names of candidates who have passed the exam are compiled into a civil service eligible list that city agencies are obligated to request in order to fill vacant positions. (Pierre Aff., para. 4-5). The petitioner successfully passed a civil service exam for the title of Correction Officer in or about November 2004 under Exam No. 4002 and his name was included in a civil service eligible list established on March 9th, 2005. (Pierre Aff., para. 6-7). In her affidavit, Pierre states that the petitioner's Exam No. 4002 was valid from March 9, 2005 to March 9, 2009, the maximum period allowed under NY Civil Service Law § 56.^[FN3] (Pierre Aff., para. 7). However, the letter the petitioner received from the DOC informing him of its decision not to appoint him as a Correction Officer refers to his application for employment under Exam No. 4002 and was dated March 12, 2010, more than a year after the expiration of his eligibility for hire under Exam No. 4002. (Petitioner's Exhibit A).

Petitioner's assertion that the DOC's decision not to appoint him as a Correction Officer was arbitrary, capricious, and contrary to law, is without merit. Once a civil service eligible list expires, it cannot be revived and an individual whose name appears on an expired eligibility list cannot be appointed to a civil service position on that basis. The Court of Appeals terms appointment to a civil service title from an expired civil service eligible list a "legal impossibility." Cash v. Bates, 301 NY 258, 261; 93 NE2d 835, 836 (1950). Furthermore, in Hancock v. City of New York, the Appellate Division, First Department held "plaintiff, whose name appears on a now-expired civil service list, is no longer entitled to be hired as a correction officer, notwithstanding that he was improperly declared to have been ineligible for the job." [*3]272 AD2d 80, 81; 707 NYS2d 832, 833 (1st Dept. 2000). The Court of Appeals' holding in Hancock is directly on point with respect to the petitioner's claim for relief, appointment to Correction Officer pursuant to an expired eligibility list in which his Exam No. 4002 appears. Pursuant to Court of Appeals' authority, DOC's decision not to appoint the petitioner as a Correction Officer was neither arbitrary, capricious, nor contrary to law, but instead in complete accordance with the Court's rulings.

Furthermore, the petitioner failed to cite any legally authoritative support for his motion and request for relief and despite providing test results for a Correction Officer Exam under Exam No. 8313, he failed to establish a relevant or discernible connection between these results, his eligibility for civil service employment under Exam No. 4002 and the DOC's decision not to appoint him to a Correction Officer position. In her affidavit in support of respondents' cross motion to dismiss, Pierre states that no civil service eligible list resulting from the administration of civil service examination No. 8313 has been established yet, therefore, the list number 289 that the petitioner asserts as corresponding to his Correction Officer exam results under Exam No. 8313 is puzzling at best. (Pierre Aff., para 8). Notwithstanding his passing score under Exam No. 8313, the petitioner is not yet eligible for civil service appointment by the DOC under that exam number, thus his exam results under 8313 should have no weight in these proceedings. Therefore, the petitioner's motion must be denied herein as moot. Petitioner fails to state a cause of action because "a determination by the court will not, as an immediate consequence of the judgment sought, affect the rights or interests of the parties." Crumpley v. Wack, 212 AD2d 299, 303, 629 NYS2d 395, 398 (1st Dept. 1995).

Accordingly, it is hereby

ADJUDGED that the petition is denied and proceeding is dismissed, without costs and disbursements to the respondents The Office of the Comptroller, the City of New York, and New York City Department of Correction.

Dated: June 24, 2010

ENTER:

J.S.C.