IN RE: Jennifer SMITH (2020)

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 17, 2018, which, upon the petition to annul respondent police commissioner's denial of petitioners' request to be designated detectives, third grade, referred to a special referee the issue of whether petitioners, in the 18 months immediately preceding November 14, 2017, performed work comparable to that of New York City police officers holding the rank of detective, third grade, and held the proceeding brought pursuant to CPLR article 78 in abeyance pending the special referee's report and recommendation, unanimously affirmed, without costs.

The article 78 court correctly concluded that a hearing was necessary to determine the rationality of the police commissioner's denial of the request by members of the New York City Police Department's Evidence Collection Team (ECT) to be designated detectives, third grade, pursuant to Administrative Code of City of N.Y. § 14–103(b)(2).  For purposes of that section, the rationality of respondent's classification of the ECT as a nondetective track unit “is tested by whether an individual officer, for a period of 18 months, performed work comparable to that performed by police officers classified as detectives” (Matter of Finelli v. Bratton, 298 A.D.2d 197, 198, 748 N.Y.S.2d 133 [1st Dept. 2002], lv denied 100 N.Y.2d 505, 763 N.Y.S.2d 811, 795 N.E.2d 37 [2003]).  The parties' submissions present issues of fact as to whether petitioners' work was comparable to detectives' work.  Thus, a hearing must be held before that determination can be made (see Matter of Ryff v. Safir, 264 A.D.2d 349, 694 N.Y.S.2d 59 [1st Dept. 1999];  Matter of Marti v. Kerik, 307 A.D.2d 836, 763 N.Y.S.2d 315 [1st Dept. 2003]).

Respondents failed to make a showing of unexcused delay in petitioners' commencement of this proceeding (see Matter of Sheerin v. New York Fire Dept. Arts. 1 & 1B Pension Funds, 46 N.Y.2d 488, 495–496, 414 N.Y.S.2d 506, 387 N.E.2d 217 [1979]).  The record does not establish when petitioners first knew, or should have known, of facts giving rise to their alleged right of relief.  Moreover, petitioners allege that they were informed in late 2014 that, due to their additional duties and training, they would be placed onto the detective track and promoted to the rank of detective after 18 months.  They commenced this proceeding after that did not occur and their ensuing grievance was denied.