IN RE: James BERTRAM (2024)

Judgment (denominated an order), Supreme Court, New York County (Erika M. Edwards, J.), entered September 13, 2023, denying the petition to annul determinations of the Metropolitan Transportation Authority, dated October 6, 2021, and October 26, 2022, which denied petitioner's application for a promotion, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The petition was filed well over four months after the October 6, 2021 personnel order and is therefore time-barred as to that order (see CPLR 217[1];  Matter of Hia v. New York City Dept. of Corr., 110 A.D.3d 570, 571, 974 N.Y.S.2d 51 [1st Dept. 2013]).

As to the October 26, 2022 personnel order, the Metropolitan Transportation Authority Police Department (MTAPD) demonstrated a rational basis for its decision not to promote petitioner to the rank of lieutenant in that personnel order (see Matter of Leone v. City of New York, 82 A.D.3d 476, 477, 917 N.Y.S.2d 633 [1st Dept. 2011]).  It is undisputed that disciplinary charges against petitioner were pending at the time of the October 26, 2022 personnel order denying him a promotion.  The MTAPD's decision was consistent with the agency's “practice,” according to the affidavit of its assistant chief in the Internal Affairs Bureau, “to not promote MTAPD members to the rank of lieutenant (or higher) while they have any disciplinary action pending.”  That petitioner was ultimately cleared of the charges does not make the decision irrational (see Matter of Kercado v. Ward, 166 A.D.2d 280, 281, 564 N.Y.S.2d 109 [1st Dept. 1990]).  Petitioner's assertions that he was treated differently from other candidates, and that the MTAPD did not adhere to the collective bargaining agreement's deadlines for resolving disciplinary matters, are unsupported by the record.

We have considered petitioner's additional arguments and find them unavailing.