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Francis v City of New York (2007 NY Slip Op 50819(U))
[*1]


Decided on April 20, 2007
Supreme Court, Richmond County

80038/06
Philip G. Minardo, J.
In this CPLR article 78 proceeding, petitioner seeks to reverse a determination of the New York City Fire Department, dated September 29, 2005, which denied his application for employment. It is petitioner's contention that respondents' refusal to select him for appointment to the title of firefighter was arbitrary and capricious.
In support, petitioner maintains that his examination results were well above average, i.e., that he received a total overall raw score of 46 out of 50; that the average score was 39; and that his adjusted final average was 101.921. In further support, petitioner submits evidence of other pertinent credentials, e.g., his certification as a New York State Emergency Medical Technician or Certified First Responder. Nevertheless, petitioner was denied appointment and is presently
file:///C|/Users/Peter/Desktop/NY/2/2007_50819.htm[4/21/2013 10:49:03 PM] Francis v City of New York (2007 NY Slip Op 50819(U))
ineligible for further certification from List No. 1200.
Although respondents' letter dated September 29, 2005 provides no explanation for the denial, petitioner claims that it was the wrongful consideration of his prior criminal record. According to petitioner, his criminality consisted of a single (unspecified) violation that was ultimately dismissed. Petitioner claims that this purported criminal activity is an insufficient basis upon which to predicate ineligibility, since there is no nexus between the alleged criminal conduct and the responsibilities of a New York City Firefighter. [*2]
In cross-moving to dismiss the petition pursuant to CPLR 3211(a)(7) and 7804(f), respondents contend that petitioner has failed to set forth sufficient facts to establish that respondents' decision was arbitrary, capricious, an abuse of discretion or made in bad faith. In support, respondents argue that a candidate on an eligible list has no vested right or legally protectable interest in appointment, citing article V,

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