IN RE: Application of Richard PATTERSON

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Richard PATTERSON, et al., Petitioners-Appellants, For a Judgment, etc., v. William DIAMOND, etc., et al., Respondents-Respondents.

Decided: June 21, 2001

NARDELLI, J.P., MAZZARELLI, RUBIN, SAXE and BUCKLEY, JJ. Robert Ligansky, for Petitioners-Appellants. Edward F.X. Hart, for Respondents-Respondents.

Judgment, Supreme Court, New York County (Michael Stallman, J.), entered June 27, 2000, which, in a CPLR article 78 proceeding challenging a civil service examination, granted respondents' motion to dismiss the petition, unanimously affirmed, without costs.

 Petitioners are lieutenants with the New York City Fire Department who failed examination number 6518 for promotion to Captain.   Included in the 100-question multiple choice examination were 12 questions dealing with certified first response defibrillators (“CFR-Ds”).  Petitioners allege that because they did not receive Fire Department training in CFR-Ds, while other candidates did, the latter had an unfair advantage, rendering the exam arbitrary and capricious and violative of the merit and fitness requirements of the State Constitution.   Such allegations fail to state a cause of action, at least absent additional allegations that the Fire Department was under some sort of legal mandate to offer all of its lieutenants CFR-D training, or that the selection was based on some patently improper criterion such as nepotism.   Nor do such allegations show an equal protection violation, since petitioners are not a suspect class and there is “ ‘no fundamental right to government employment for purposes of the Equal Protection Clause’ ” (Winkler v. Spinnato, 72 N.Y.2d 402, 406, 534 N.Y.S.2d 128, 530 N.E.2d 835).   It is typically the case that some candidates will have superior knowledge as to one or more pertinent subjects on an exam by virtue of training or experience (compare, Matter of Katz v. Hoberman, 28 N.Y.2d 530, 319 N.Y.S.2d 73, 267 N.E.2d 886, adhered to on rearg. 28 N.Y.2d 970, 323 N.Y.S.2d 708, 272 N.E.2d 81, cert. denied sub nom. Mooney v. Hoberman, 404 U.S. 881, 92 S.Ct. 213, 30 L.Ed.2d 163), and indeed the discovery of such candidates is the point of the exam.   We note our disagreement with the motion court that the proceeding is barred by the Statute of Limitations (see, Matter of Martin v. Ronan, 44 N.Y.2d 374, 405 N.Y.S.2d 671, 376 N.E.2d 1316).