Supreme Court, Kings County, November 8, 2019

Philip H. Seelig, New York City, for petitioner.

Zachary W. Carter, Corporation Counsel, New York City (Ryan G. Shaffer and Maxwell Leighton of counsel), for respondents.

This case addresses the issue of whether the Fire Department of the City of New York (FDNY or respondent) acted arbitrarily and capriciously when it denied Stephen McAnulty (petitioner) reinstatement eight years after he resigned. Petitioner was appointed by the FDNY in May 2003 and resigned on April 8, 2009, the same day he pleaded guilty to the felony charge of making false statements to agents and representatives of the FBI and Antitrust Division of the Justice Department. On January 15, 2013, the court sentenced him to three years of probation. In May 2016, the New York State Department of Corrections and Community Supervision issued petitioner a certificate of good conduct.

Petitioner claims that on March 1, 2010, he submitted a timely request for reinstatement to the former Fire Commissioner Salvatore Cassano,^[FN*] but that he did not receive a response from the FDNY for seven years. He therefore followed up with another letter dated September 20, 2017, requesting reinstatement. In June 2017, the FDNY denied McAnulty's request, stating that he could not be considered for reinstatement eight years since his resignation because of the four year limit on reinstatement set forth in Personnel Rules and Regulations of City of New York (55 RCNY Appendix A) ¶ 6.2.3 (a). Pursuant to paragraph 6.2.3 (a), reinstatement must be accomplished within a period of time equivalent to the time the employee has actually served in the civil service of New York City, but in no event shall such period for reinstatement be less than one year nor more than four years from the date of resignation or retirement.{**66 Misc 3d at 402}

Petitioner argues that the FDNY is at fault for taking over seven years to respond to his March 1, 2010 request, and is therefore barred from denying him reinstatement. Petitioner also pointed to his commendable life of dedicated public service and submitted several letters of recommendation from his supervisors and superiors at the FDNY and the US Military Academy at West Point, where he was an assistant soccer coach.

Pursuant to Personnel Rules and Regulations of City of New York (55 RCNY Appendix A) ¶ 6.2.1 (a) and (b), a city employee who has resigned from a permanent position may be reinstated with the approval of the head of the agency (in this case the Commissioner of the FDNY) only if the "separation from employment was without fault or delinquency on the employee's part and the head of the agency to whom the employee has applied for such reinstatement is willing to reinstate the employee." Regardless of petitioner's commendable service as a firefighter and the statements submitted by his colleagues and former superiors supporting him, petitioner's guilty plea is an acknowledgment of his own wrongdoing and fault, and he was therefore not entitled to reinstatement pursuant to paragraph 6.2.1 (a). (See Vrettos v City of New York, 2011 NY Slip Op 30536[U], *6-7 [Sup Ct, NY County 2011].) Furthermore, pursuant to Public Officers Law § 30 (1) (e), when public officers, including firefighters for the FDNY, are convicted of a felony, their position becomes vacant. A "conviction" is defined to include "entry of a plea of guilty." (CPL 1.20 [13]; Matter of Gunning v Codd, 49 NY2d 495, 499 [1980]; see also Braun v City of New York, 284 F Supp 3d 572, 577 [SD NY 2018] [a guilty plea to a felony automatically terminates member's employment with the FDNY].)

An individual who has been convicted may apply for reinstatement only "upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy." (Public Officers Law § [*2]30 [1] [e].) There is no evidence that petitioner's voluntary guilty plea was vacated. Accordingly, the FDNY is legally barred from reinstating him and his letter seeking reinstatement was of no legal consequence. (See Stimpfle-Jones v Jones, 124 AD2d 869, 869 [3d Dept 1986] [since statute prohibited the marriage of an inmate serving a sentence of life imprisonment, purported marriage of inmate was deemed a "legal nullity"].) Thus, the perceived timeliness of petitioner's request for reinstatement and the seven year{**66 Misc 3d at 403} delay in the FDNY's response is of no moment in this court's determination as to the propriety of the FDNY's denial.

Pursuant to CPLR 7803 (3), the court must ascertain whether an agency's determination was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." (Matter of Save America's Clocks, Inc. v City of New York, 33 NY3d 198, 207 [2019]; Matter of Jefferson v New York City Bd. of Educ., 146 AD3d 779, 780 [2d Dept 2017]; Matter of Ware v Board of Fire Commrs. of the Roosevelt Fire Dist., 32 Misc 3d 781, 788 [Sup Ct, Nassau County 2011].) A determination is deemed to be arbitrary and capricious where it is made "without sound basis in reason or regard to the facts." (Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010] [internal quotation marks omitted].) As this court previously noted, deviating from the statutory and regulatory requirements would be arbitrary and capricious as such deviation lacks of "sound basis in reason." (McCollum v City of New York, 61 Misc 3d 378, 381 [Sup Ct, Kings County 2018] [internal quotation marks omitted]; James v Been, 55 Misc 3d 631, 633 [Sup Ct, Kings County 2017].) The sanction that the agency imposes is deemed to be an abuse of discretion if it is "so disproportionate to the offense as to be shocking to one's sense of fairness." (Matter of Featherstone v Franco, 95 NY2d 550, 555 [2000].)

In sum, petitioner has not shown that the FDNY in any way violated lawful procedure, or deviated from the standards set forth in Personnel Rules and Regulations of City of New York (55 RCNY Appendix A) ¶ 6.2.1 (a) and (b), and Public Officers Law § 30 (1) (e). The court finds that respondent's determination was reasonably based on the facts and law, and was not arbitrary and capricious or an abuse of discretion. Therefore, the petition is denied.