IN RE: Barry HARPUR

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IN RE: Barry HARPUR, appellant, v. Salvatore J. CASSANO, etc., et al., respondents.

Decided: June 17, 2015

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ. Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Michael N. Block and Stephen C. Glasser of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein, Edward F.X. Hart, and Devin A. Slack of counsel), for respondents.

In a proceeding pursuant to CPLR article 78 to review a determination of Salvatore J. Cassano, as Fire Commissioner of the Fire Department of the City of New York, declining to promote the petitioner to the rank of fire marshal, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Martin, J.), dated December 5, 2013, which, inter alia, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with costs.

The petitioner commenced this CPLR article 78 proceeding, after he was considered, but not selected, for promotion from a list of eligible candidates for the position of fire marshal. The petitioner alleged, inter alia, that the respondents' determination was arbitrary and capricious insofar as it was based not on merit, but rather upon the fact that his name also appeared on an eligible list for promotion to the position of lieutenant. Further, the petitioner alleged that the appointments that were made to the position of fire marshal were effected in violation of Civil Service Law § 61(1), which requires that such appointees be selected from one of three highest persons on the relevant eligible list, and in violation of article V, § 6, of the New York Constitution, which requires that such appointments be made according to merit and fitness to be ascertained, as far as practicable, by examination. The Supreme Court, inter alia, denied the petition and dismissed the proceeding.

Our review of an agency determination that was not made after a quasi-judicial hearing is limited to consideration of whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803[3]; Matter of London Leasing Ltd. Partnership v. Division of Hous. & Community Renewal, 98 AD3d 668, 670; Matter of Halperin v. City of New Rochelle, 24 AD3d 768, 770). In such a proceeding, courts “examine whether the action taken by the agency has a rational basis,” and will overturn that action “where it is ‘taken without sound basis in reason’ or ‘regard to the facts' “ (Matter of Wooley v. New York State Dept. of Correctional Servs., 15 NY3d 275, 280, quoting Matter of Peckham v. Calogero, 12 NY3d 424, 431; see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 232). In demonstrating that administrative actions were taken arbitrarily or in bad faith, the petitioner bears a heavy burden of proof, for which conclusory allegations and speculative assertions will not suffice (see Matter of Knight v. County of Nassau, 27 AD3d 470, 471).

“A person whose name appears on a list of eligible candidates does not have a vested right to appointment” (Matter of Gomez v. Hernandez, 50 AD3d 404, 404; see Matter of Andriola v. Ortiz, 82 N.Y.2d 320, 324; Matter of Cassidy v. Municipal Civ. Serv. Comm. of City of New Rochelle, 37 N.Y.2d 526, 529). “Examination scores are not the sole determinant of fitness, as ‘the appointing authority must be cloaked with the power to choose a qualified appointee who possesses all the attributes necessary for the responsible performance of his [or her] duties' “ (Matter of Gomez v. Hernandez, 50 AD3d at 404, quoting Matter of Cassidy v. Municipal Civ. Serv. Comm. of City of New Rochelle, 37 N.Y.2d at 529; see Matter of Andriola v. Ortiz, 82 N.Y.2d at 324; see also Matter of Delicati v. Schechter, 3 A.D.2d 19, 21). Insofar as relevant here, the respondents had a rational basis for the determination not to appoint the petitioner to the rank of fire marshal. The determination was neither arbitrary and capricious nor an abuse of discretion under Civil Service Law § 61(1), and was not contrary to the merit and fitness requirements of the New York Constitution (see N.Y. Const, art V, § 6).

Accordingly, the Supreme Court properly, inter alia, denied the petition and dismissed the proceeding.

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