Tzar Parson, Petitioner, v. City of Rochester et al., Respondents. (2026)

In this special proceeding pursuant to Article 78 of the CPLR, Petitioner Tzar Parson ("Petitioner"), a Fire Lieutenant in the City of Rochester Fire Department, challenges what he maintains was a decision by Respondents the City of Rochester and Fire Chief Stefano Napolitano (collectively, "Respondents") not to consider him for promotion to the rank of Fire Captain. For the reasons set forth below, the Petition is denied in its entirety.

BACKGROUND

In his Verified Petition, filed on June 19, 2026, Petitioner alleges that although he remains an eligible candidate on the civil service list for promotion to Fire Captain, "Respondents promoted multiple candidates ranked below Petitioner on the same eligibility list while Petitioner was not interviewed, canvassed, or otherwise considered for promotion" (Verified Petition, NYSCEF Doc. No. 1, ¶ 2). Petitioner asserts that Respondents made three promotions to Fire Captain on June 1, 2026, and that each of the promoted officers ranked below Petitioner on Fire Captain Promotional Eligible List No. 23EP78038, the operative promotional list (the "List") (id., ¶¶ 26-28). Petitioner maintains that Respondents' failure to consider him for a promotion was arbitrary and capricious or an error of law (id., ¶ 43). Petitioner seeks an Order directing Respondents to consider him for promotion and enjoining Respondents from taking any action that would extinguish or render moot Petitioners' status on the List (id., Wherefore clause).¹

Several months before the present dispute emerged, Petitioner and Respondents entered into a Memorandum of Agreement dated January 16, 2026 (the "MOA"). The MOA resolved disciplinary charges against Petitioner related to an incident that took place on March 25, 2025 (see MOA, NYSCEF Doc. No. 19). Through the MOA, Petitioner pleaded guilty to specified charges. In addition to imposing a suspension and a "Last Chance Agreement," the MOA provided that Petitioner "shall not be eligible to take the promotional Civil Service exam for Captain for a period of three (3) years from the date of this Agreement" (id., ¶ 5). Although the MOA precluded Petitioner from taking the next promotional exam for Fire Captain, it did not preclude him from being considered for promotion based on the List (see id.), a point upon which Petitioner and Respondents agree (see Verified Petition, NYSCEF Doc. No. 1, ¶ 4; Verified Answer, NYSCEF Doc. No. 32, ¶ 24).

On July 15, 2026, Respondents moved to dismiss this proceeding (Motion #2, NYSCEF Doc. Nos. 15-20). Respondents argued that Petitioner failed to plead facts making out a claim that Respondents erred in failing to promote Petitioner, that there was a rational basis for the failure to promote Petitioner, that Petitioner failed to exhaust his administrative remedies, and that Petitioner is not entitled to his desired remedy of remand to Respondents to reconsider his promotion (NYSCEF Doc. No. 17). Petitioner opposed the motion (NYSCEF Doc. Nos. 22-23), Respondents submitted a reply in further support of their motion (NYSCEF Doc. No. 24), and the Court held oral argument on August 18, 2026. On August 27, 2026, the Court issued a decision denying Petitioner's motion, concluding that "assuming the truth of Petitioner's allegations," as the Court must on a motion to dismiss, "he sets forth a cognizable legal theory that Respondents erred as a matter of law in misreading the MOA as precluding Petitioner's consideration for promotion from the List" (NYSCEF Doc. No. 25 at 4). Following the denial of the motion to dismiss, Respondents filed their Verified Answer (NYSCEF Doc. No. 32) and the administrative record (NYSCEF Doc. Nos. 33-43).

Petitioner has filed a motion seeking an Order pursuant to CPLR 7805 staying the expiration of the List and enjoining Respondents from implementing any new promotional eligibility list or filling a vacant Fire Captain position during the pendency of this proceeding (Motion #3, NYSCEF Doc. Nos. 27-30). The List was originally scheduled to expire on November 15, 2026 (Verified Petition, NYSCEF Doc. No. 1, ¶ 36). On August 21, 2026, the List was extended until November 15, 2027, or such time as a new list was established following an appropriate examination (Verified Answer, NYSCEF Doc. No. 32, ¶ 36; NYSCEF Doc. No. 35). A civil service promotional exam for Fire Captain, for which Petitioner was ineligible to sit under the MOA, was conducted on June 27, 2026 (NYSCEF Doc. No. 29; Verified Answer, NYSCEF Doc. No. 32, ¶ 37). Respondents opposed Petitioner's motion (NYSCEF Doc. No. 44). Petitioner also submitted a reply in further support of his Petition (NYSCEF Doc. No. 45).²

The Court heard oral argument on both the Petition itself and Petitioner's motion pursuant to CPLR 7805 on October 2, 2026. The Court has considered all the papers filed in this proceeding, as well as oral argument, in preparing this Decision and Order.

DISCUSSION

The record shows that, contrary to Petitioner's assertions, Respondents did in fact consider Petitioner for promotion. Accordingly, the Petition must be denied.

The Court of Appeals' decisions "repeatedly have acknowledged the importance of the discretionary governmental appointive power embodied in Civil Service Law § 61, and have rejected attempts to invoke the aid of the courts to limit the reasonable exercise of that discretion" (Andriola v. Ortiz, 82 NY2d 320, 324 [1993]). "[A] person successfully passing a competitive Civil Service examination does not acquire any legally protectable interest in an appointment to the position for which the examination was given" (id. [emphasis in original, internal quotation marks omitted]). The Civil Service Law "affords the promoting authority broad discretion in the selection of candidates, including that of appointing a lower-scoring candidate over a higher-scoring one" (Dramis v. Nassau County Community College, 173 AD2d 705, 705 [2d Dept. 1991]). Petitioner thus bears the burden of proof to show that Respondents' decision was arbitrary or in bad faith (Drumm v. Cassano, 129 AD3d 957, 958 [2d Dept. 2015]; Gomez v. Hernandez, 50 AD3d 404, 404 [1st Dept. 2008]).

The administrative record produced by Respondents demonstrates that Respondents did consider Petitioner for a promotion and did not omit him from consideration due to a misunderstanding of the MOA or for some other reason. The Civil Service Certification provided by the City's Human Resources Department to Chief Napolitano listed the four candidates who were eligible for promotion to Fire Captain under the List, including Petitioner (NYSCEF Doc. No. 40). That same Civil Service Certification was then signed by Chief Napolitano, with annotations indicating that the three other candidates on the list had been selected for promotion (NYSCEF Doc. No. 41). These records make clear that Petitioner was treated as an eligible candidate for promotion, but was not selected.

Other evidence also supports the conclusion that Petitioner was considered for promotion. In response to an email inquiry from Petitioner as to why he had been denied permission to take the June 2026 promotional exam, the City's Human Resources office replied that the denial was based on the MOA, and "has nothing to do with your status on the current Fire Captain Promotional Eligible List" (NYSCEF Doc. No. 38), confirming that Petitioner remained an active candidate on the List. The most up-to-date version of the List contained in the record likewise confirms that Petitioner remained an active candidate (NYSCEF Doc. No. 43).

In sum, the record contradicts Petitioner's claim that he was not considered for promotion. Petitioner has failed to meet his burden to establish that Respondents, in the exercise of their broad discretion, acted arbitrarily or in bad faith in electing not to promote Petitioner. It could reasonably be inferred that Respondents declined to promote Petitioner based on the incident leading to the discipline documented in the MOA, but Respondents' reasoning is not contained in the record. This, however, is of no moment. Respondents were not required to explain the basis of their decision not to promote Petitioner: "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" (Palomino v. City of New York, 216 AD3d 573, 574 [1st Dept. 2023]; see also Gomez, 50 AD3d at 404).³

Having determined that the Petition must be denied, there is no basis to grant Petitioner's motion seeking to stay further action while this proceeding is pending. Accordingly, Petitioner's motion (Motion #3) will be denied as well.

CONCLUSION

Based on the Court's review of all the papers submitted, oral argument heard from both parties, and upon due deliberation, it is hereby

ORDERED, that the Petition is DENIED in its entirety; and it is further

ORDERED, that Petitioner's motion for a stay pursuant to CPLR 7805 (Motion #3) is DENIED in its entirety.

Dated: October 5, 2026

Rochester, New York

Hon. John P. Bringewatt, A.J.S.C.

FOOTNOTES

1.   In a letter dated August 28, 2026, Petitioner informed the Court that he was withdrawing his request for back pay (NYSCEF Doc. No. 26).

2.   On October 1, 2026, the day before the return date in this matter, Respondents submitted a letter to the Court reporting that a new promotional eligibility list was established on September 24, 2026, based on the examination that was administered on June 27, 2026, and advised that they intended to move to dismiss this proceeding based on the creation of the new list at the return date scheduled for the following day (NYSCEF Doc. No. 46). Petitioner submitted a letter objecting to the consideration of this issue without briefing (NYSCEF Doc. No. 47). During the October 2, 2026, appearance, Respondents made an oral motion to dismiss based on the new list. The Court denied the motion on the record because of the absence of any admissible evidence documenting the creation or existence of the new list and the lack of briefing on the issue. After the appearance, Respondents submitted documentation concerning the creation of the new list (NYSCEF Doc. Nos. 48-51), and Petitioner objected to the belated consideration of these records (NYSCEF Doc. No. 52). In light of the Court's determination in this Decision and Order, there is no need to address the newly created list.

3.   Respondents acknowledge that they did not provide notice to Petitioner of his non-appointment as required by Civil Service Law § 61(3). However, the failure of an agency to comply with this provision does not provide "an unsuccessful candidate a basis for challenging the determination of the appointing authority" (Wagner v. New York City Transit Auth., 266 AD2d 304, 305 [2d Dept. 1999]).

John P. Bringewatt, J.