IN RE: Nicholas PALOMINO (2023)

Judgment (denominated an order), Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about January 5, 2022, denying the petition challenging respondent New York City Police Department's (NYPD), determination, dated December 1, 2020, which denied appointment of petitioner as a probationary police officer, granting respondents’ motion to dismiss the petition for failure to state a cause of action, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner fails to allege any facts suggesting that respondent NYPD's determination was arbitrary and capricious (see generally Matter of Delicati v. Schechter, 3 A.D.2d 19, 157 N.Y.S.2d 715 [1st Dept. 1956]).  Petitioner's passage of the civil service exam and other qualifications did not entitle him to appointment.  “Even [well-qualified] candidates such as petitioner ․ can be denied [appointment] provided appropriate discretion is used within the confines of the ‘one-of-three’ rule in Civil Service Law § 61” (Matter of Gomez v. Hernandez, 50 A.D.3d 404, 405, 858 N.Y.S.2d 8 [1st Dept. 2008]).  Contrary to petitioner's contention, it is not arbitrary and capricious for an agency to provide no reason for an appointing official's exercise of discretion in declining to appoint a specific candidate (see id. at 404, 858 N.Y.S.2d 8;  Delicati, 3 A.D.2d at 24–25, 157 N.Y.S.2d 715).  Petitioner's allegations of delays and irregularities in the selection process do not meet his “heavy burden of proof, for which conclusory allegations and speculative assertions will not suffice” (Gomez, 50 A.D.3d at 404, 858 N.Y.S.2d 8 [internal citations omitted]).

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