LIEBEL 78 CPLR v. NEW YORK CITY CIVIL SERVICE COMMISSION (2018)

Petitioner, who was 23 years old at the time, took the qualifying exam for the position of police officer, thus commencing the application process. By letter dated July 12, 2016, petitioner was notified that respondent New York City Civil Service Commission had deemed him psychologically disqualified for the position of police officer. The notification further informed petitioner that he could withdraw his name from consideration, which did not prevent him from his right to reapply for the position in question or other city positions. Petitioner chose not to withdraw his name but to appeal, and subsequently to commence this Article 78 proceeding. Petitioner indicates, on information and belief, that this eligibility list, on which he is ineligible, expires on December 17, 2019, when a new test, evaluation process, and eligibility list shall be generated. There is no indication that petitioner has waived the right to reapply.

Petitioner raises numerous objections to the determination, including 1) that his retained psychologist, Dr. Mark D. Lerner, spent five hours examining petitioner — compared to the New York Police Department (NYPD) psychologist, Dr. Alessandra Herbosch, who spent only an hour examining petitioner; 2) that Dr. Herbosch did not immediately issue her report but took around five months to file the report; 3) that Dr. Edward Fitzsimmons, the NYPD Psychological Services Section Deputy Director, improperly sustained his own January 2017 decision not to hire petitioner in March 2017 when he should have had this review conducted by another individual, 4) that Dr. Fitzsimmons improperly reached his decision without personally interviewing petitioner; and 5) that the NYPD did not hold a hearing or conduct a follow-up interview when it reached its decision in the first instance or on appeal. Petitioner further alleges that Dr. Herbosch's conclusion that petitioner lacks adequate coping skills and has not sufficiently adjusted to adulthood is belied by the fact that he graduated from college within four years. In addition, he alleges that the NYPD discriminated against him because he suffers from attention deficit disorder (ADHD), a recognized disability. Among other relief including reinstatement on the eligible list, petitioner requests a hearing before this Court under CPLR § 7804 (h).

Respondents cross-move to dismiss. The Court grants this cross-motion. “An appointing authority has wide discretion in determining the fitness of candidates,” and “[t]his discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied” (Matter of Verme v. Suffolk County Dept. of Civil Serv., 5 AD3d 498, 498 [2nd Dept 2004]; see City of New York v. New York City Civil Serv. Commission, 20 AD3d 347, 347-48 [1st Dept 2005], aff'd, 6 NY3d 855 [2006] ). Once a court concludes there is a rational basis for the determination that the applicant is disqualified for the position of police officer, “the judicial function is exhausted” [City of New York v. New York City Civil Serv. Commission, 61 AD3d 584, 584-85 [1st Dept 2009] [City of New York II] ).

There is no merit to petitioner's allegation that there have been procedural violations. As for respondents' failure to provide petitioner with a hearing, his own reply memorandum acknowledges there is no hearing requirement. Although petitioner alleges that Dr. Fitzsimmons could not re-evaluate his decision, and that Dr. Herbosch could not submit her report several months after her interview with petitioner, petitioner cites nothing which indicates that such behavior violated any procedure or constitutes irrationality. In addition, as respondents correctly state, petitioner has not shown that a hearing is required in this matter, because the papers provide an adequate basis for review.

Moreover, petitioner cites no support for the argument that Dr. Herbosch's examination should be disregarded because his retained expert, Dr. Lerner, spent more time with him than Dr. Herbosch did. On the contrary, respondents were “entitled to rely upon the findings of [their] own medical personnel, even if those findings are contrary to those of professionals retained by the candidate” (City of New York II, 61 AD3d at 584-85 [citing Thomas v. Straub, 29 AD3d 595, 596 (2nd Dept 2006) ] ). His challenges to the rationality of her conclusions lacks merit as they suggest the doctor's report was brief and conclusory, based solely on the fact that he has ADHD. Instead, the report includes statements which rely on Dr. Herbosch's review of petitioner's medical history, including past psychological evaluations, and on his academic records. Contrary to petitioner's intimation, the doctor's statements regarding petitioner's employment history were accurate.

Furthermore, petitioner incorrectly states that Dr. Herbosch relied on his diagnosis of ADHD in reaching her determination. Based on the reports of Barbara Defeo, N.P.P, who prescribed Adderall to petitioner, and on petitioner's own comments during the interview, Dr. Herbosch found that during his approximately one year on the medication, petitioner had used the Adderall irregularly — during exams, for example, and for job interviews.¹ Moreover, she noted, petitioner told her that he found it difficult to concentrate when he was not on the medication. She found that, as such, “it is especially concerning that if [petitioner] were to stop taking his medication he might be unable to remain focused while on duty, which could potentially place [petitioner], his partner, and the community at risk” (Candidate Psychological Disqualification Summary, at *5 [annexed to Aff. in Support of Cross-Motion, at Exh. 1] ). The doctor also relied on conclusions unrelated to petitioner's ADHD, such as “his guarded response style and under-reporting of problems or faults” (id.). His defensiveness, she found, was extreme and raised questions regarding his credibility (id.).

Petitioner's additional arguments are unpersuasive. The Court rejects petitioner's contention that it was irrational to rely on Dr. Herbosch's evaluation because she made her recommendation based on an October 14, 2015 interview, which took place almost two years before respondents rendered their decision. Respondents notified petitioner of the decision in a letter June 16, 2016, around eight months after the examination. The decision to which petitioner refers sustained the earlier finding, and did not reopen petitioner's application or psychological evaluation. Petitioner notes that Dr. Herbosch stated in her report that petitioner was unemployed, but asserts that after the interview he began a full-time job. This information is not relevant because this court's review of the challenged decision is limited to whether “[the] action has a rational basis in the record” (Save America's Clocks, Inc. v. City of New York, 157 AD3d 133, 155 [1st Dept 2017] [emphasis supplied] ). Petitioner's contention that respondents' decision on his appeal set forth no explanation, and therefore no rational basis, for their decision, also lacks merit because the order expressly adopted the reasoning in Dr. Fitzsimmons' March 23, 2017 determination and incorporated that document by reference. The Court has considered petitioner's additional arguments and they do not alter the Court's decision. Accordingly, it is

ORDERED that the cross-motion is granted and the petition is dismissed.

FOOTNOTES

1.   The Court may consider the record evidence in evaluating the cross-motion (see, e.g., Batyreva v. New York City Dept. of Educ., 50 AD3d 283 [1st Dept 2008]; Rutherford v. State of New York Division of Housing and Community Renewal, 4 Misc 3d 1029 [A], 2004 NY Slip Op 51116 [U] [Sup Ct, NY County 2004] ). Therefore, there is no merit to petitioner's argument that this matter is not ripe for CPLR § 3211 (a) (7) review.

Carmen Victoria St. George, J.