Petition for Writ of Certiorari — Andriola v. Antinoro
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No. 93 - Suprema Coart, U.S,
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in The 9831326 FEB 15 19
Supreme Court of the Gntted States
Qe¢ilba Ur tmk &
October Term, 1993
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LAWRENCE ANDRIOLA, JAMES A. BURKE, 1. OMAS J. CAPANELLI, JOHN
CIORCIARI, LAWRENCE E. CONNORS, JOAQUIM P. DASILVA, ALFRED J.
PAUVEL, ANTHONY L. FRAVOLA, JOSEPH J. KENNINGTON, ROBERT W.
LINHART, JOSEPH LUNZ, JOSEPH MARAGLINO, PATRICK H. MCDERMOTT,
JAMES R. MCENROE, THOMAS M. MCMAHON, PETER T. MORGAN, JOHN F.
MULVEY, RAYMOND NEGRYCZ, JAMES W. O’BRIEN, ROBERT J. O’HARA,
RUSSELL L. OLSON, JOHN F. PETERSON, MICHAEL JOHN PUZZIFERRI,
THOMAS F. REGAN, RICHARD J. SMITH and JOSEPH SOLAZZO,
-and- Petitioners,
MICHAEL ANTINORO, PETER BIANCHINI, ROBERT BRADLEY, ALLEN
DELGANDIO, EDWARD ELLISON, HERBERT FISCHER, WILLIAM GRONEMAN,
JOHN GULOTTA, ADOLF HUTTER, JOHN KLEEHAAS, JAMES KLESS, DOUGLAS
KRUGER, CORNELIUS LEHANE, CHARLES MCCARTHY, DONALD MC-
CULLOUGH, DENIS NEIGAN, LEROY O’NEIL, ERIC REHREIN, JOHN REILLY,
DENNIS SCANLON, FRANCIS SHANAGAN, JOHN STACK, PATRICK WELSH,
SAM WHITE, CHARLES WILLIAMS and RICHARD ABBOTT,
-against- Intervenors-Petitioners,
JUAN U. ORTIZ, as City Personnel Commissioner, Department of Personnel,
and as Chairman of the Civil Service Commission of the City of New York,
and JOSEPH E. SPINNATO, as Fire Commissioner of the City of New York,
-and- Respondents,
WILLIAM BARRETT, JOSEPH BACCARI, JAMES O’DONNELL, on behalf of them-
selves and other successful candidates on Promotion List 5608 (Lieutenant,
NYC Fire Department) as members of Lieutenant Eligible Association 5608,
Intervenors-Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE STATE OF NEW YORK COURT OF APPEALS
Joun F. MILs
Counsel of Record
CoLLERAN, O’Hara & MILLS
1225 Franklin Avenue, Suite 450
Garden City, New York 11530
(516) 248-5757
Attorneys for Petitioners and
Intervenors- Petitioners
OUESTION PRESENTED For REVIEY¥
Whether under the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution
the Respondents’ denial of retroactive seniority and wages
to the Petitioners is unconstitutional.
u
TABLE OF CONTENTS
Page
Questions Presented For Review o.0..0.0.......cccccccccccees. l
WA: Wr IIIIUD sksssicssennensiencaeeanieasciemenae ee ul
TRIN GID sisctvincerontcccaneseenenies eee iv
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PUNEIUN : cicicstsinitistisinietdsishinsseonatdaideniae eRe 2
SO: TE sscietsniisesnsiddcesienancataeaas 2
FO stntininnisititiinid ee 3
Constitutional And Statutory Provisions Involved
A. Constitutional Provision ...........ccccccccececeseseeseees 3
B. Statutory Provision ..0.........c.cccccsesscececessceeeceesees 4
Statement of The Case
A. Statement Of Facts ...cecececcoccercocecesecrecevoveccecesers 5
es POU POD scscnciciticnenmmnatntanese, 7
Reasons For Granting The Writ
I. This Case Involves Important Constitution-
al Questions as to Whether The Equal Pro-
tection Clause of The Fourteenth Amend-
ment Has Been Violated by The City’s
Refusal to Grant These Petitioners Retro-
active Benefits That Have Previously Been
Granted to Civil Servants Who Have Been
Promoted Belatedly Due to Conduct Attri-
butable Only to The City ...0..0.00000ccccccce 9
A. The City’s Refusal to Grant These Retro-
active Benefits And The Court of Appeals’
Decision Violates The Equal Protection
Clause of The Fourteenth Amendment
Because The Challenged Classification is
Not Relevant to The Achievement of The
Articulated Governmental Objective
eeeeee
Conclusion
Page
9
TH
iv
APPENDIX CONTENTS
APPENDIX A
Opinion of The State of New York Court of
Appeals, Decided November 18, 1993 (82 NY2d
ee TT ee
Decision And Order of The Supreme Court of
The State of New York, Appellate Division, First
Department, Entered October 13, 1992 (186 A.D.
ae Se Aevsieseciitininasiinschsieiaichanieialainaiidaentaibllailiaibinaa aie
Decision of Kristin Booth Glen, J., Supreme Court
of The State of New York, County of New York,
Ge RII ey eae, rane
APPENDIX D
Order & Judgment of Kristin Booth Gien, J.,
Supreme Court of The State of New York, County
of New York, Entered October 31, 1991............
APPENDIX E
Decision of Kristin Booth Glen, J., Supreme Court
of The State of New York, County of New York,
SP CE 9 We iesticnicsietencniatecnintasidiisisitiottidicmens
APPENDIX F
Order & Judgment of Kristin Booth Glen, J.,
Supreme Court of The State of New York, County
of New York, Entered August 5, 1988................
Page
15a
18a
33a
38a
4la
TABLE OF AUTHORITIES
Page
Cases CITED:
Abrams v. Bronstein,
33 N.Y.2d 494, 354 N.Y.S.2d 926, 310 N.E.2d
S2B (1974)......ccccccccscsreserorercsrscsesensncesasssosssossesoseresecseses passum
Andriola v. Ortiz,
186 A.D.2d 423, 588 N.Y.S.2d 280 (1st Dept.
1992), leave to appeal granted, 81 N.Y.2d 710,
599 N.Y.S.2d 804 (1993) reversed, 82 N.Y.2d
320, 604 N.Y.S.2d 530, 624 N.E.2d 667
(1993) ...crececcrecssseverssescsvssosecrseessesesesenceveesensesesensessoveesees 2
Dandridge v. Williams,
397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491
(1970), reh’g denied, 398 U.S. 914, 90 S.Ct.
1684, 26 L.Ed.2d 80 (1970)......:.:ccceccscesereseeeeeseesees 4,n.2, 10
Massachusetts Bd. of Retirement v. Murgia,
427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520
(1976) ..-ccceccceeseercesosessenossusovocsosrcsoeessecessenenensesetseseeseeeees 4,10
McKernan v. City of New York Civil Serv. Comm'n.,
121 A.D.2d 350, 503 N.Y.S.2d 572 (1st Dep't
1986), appeal denied, 69 N.Y.2d 607, 514
N.Y.S.2d 1025, 507 N.E.2d 321 ‘ — passim
Turner v. Fouche,
396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567
vi
Page
Cases CITED: (continued)
Vance v. Bradley,
440 US. 93, 99 S.Ct. 939, 59 L.Ed.2d 171
a PIE aaicitieieteseenpineanninepieteeaninibnianseneninaiaaninaiennieaataniin 4,10
STA Ww N oO
CITED:
jt os Ry Ce ) en 3
a ae Oe i aeiiecisracercitininencctinliacaiecteninciaicibiaptaai 3
New York Civil Practice Laws And Rules ("CPLR")
§ 7801 - 7806 (McKinney 1981)...............cccseeees n.1,n.2
New York Civil Service Law § 61 (McKinney
———————— ————
In The
Supreme Court of the
Gnited States
October Term, 1993
—_@—-
LAWRENCE ANDRIOLA, JAMES A. BURKE, THOMAS J.
CAPANELLI, JOHN CIORCIARI, LAWRENCE E. CONNORS,
JOAQUIM P. DASILVA, ALFRED J. PAUVEL, ANTHONY L.
FRAVOLA, JOSEPH J. KENNINGTON, ROBERT W. LINHART,
JOSEPH LUNZ, JOSEPH MARAGLINO, PATRICK H. MCDERMOTT,
JAMES R. MCENROE, THOMAS M. MCMAHON, PETER T.
MORGAN, JOHN F. MULVEY, RAYMOND NEGRYCZ, JAMES W.
O’BRIEN, ROBERT J. O’HARA, RUSSELL L. OLSON, JOHN F.
PETERSON, MICHAEL JOHN PUZZIFERRI, THOMAS F. REGAN,
RICHARD J. SMITH and JOSEPH SOLAZZO,
-and-
Petitioners,
MICHAEL ANTINORO, PETER BIANCHINI, ROBERT BRADLEY,
ALLEN DELGANDIO, EDWARD ELLISON, HERBERT FISCHER,
WILLIAM GRONEMAN, JOHN GULOTTA, ADOLF HUTTER, JOHN
KLEEHAAS, JAMES KLESS, DOUGLAS KRUGER, CORNELIUS
LEHANE, CHARLES MCCARTHY, DONALD MCCULLOUGH,
DENIS NEIGAN, LEROY O’NEIL, ERIC REHREIN, JOHN REILLY,
DENNIS SCANLON, FRANCIS SHANAGAN, JOHN STACK, PATRICK
WELSH, SAM WHITE, CHARLES WILLIAMS and RICHARD
ABBOTT, -against- Intervenors-Petitioners,
JuAN U. OrTIz, as City Personnel Commissioner,
Department of Personnel, and as Chairman of the Civil Service
Commission of the City of New York, and JOSEPH E. SPINNATO,
as Fire Commissioner of the City of New York,
ant Respondents,
WILLIAM BARRETT, JOSEPH BACCARI, JAMES O’DONNELL, on
behalf of them-selves and other successful candidates on
Promotion List 5608 (Lieutenant, NYC Fire Department) as
members of Lieutenant Eligible Association 5608,
Intervenors-Respondents.
a
ane tn Sm
PETITION FOR A WRIT OF CERTIORARI
TO THE STATE OF NEW YORK COURT OF APPEALS
PARTIES
The names of all the parties to the proceeding in
the court whose judgment is sought to be reviewed here
appear in the caption of the case.”
OPINIONS BELOW
The opinion of the Court of Appeals for the State
of New York, is officially reported as Andriola v. Ortiz, 82
N.Y.2d 320, 604 N.Y.S.2d 530, 624 N.E.2d 667, (1993) and
appears at Appendix A hereto, at pages la- 14a. The New
York State Supreme Court Appellate Division, First
Department decision is officially reported as Andnola v.
Ortiz, 186 A.D.2d 423, 588 N.Y.S.2d 280 (1st Dept. 1992),
leave to appeal granted, 81 N.Y.2d 710, 599 N.Y.S.2d 804
(1993) and appears at Appendix B, pages 15a-17a. The
New York State Supreme Court opinion is not officially
reported and appears as Appendix C, at pages 18a - 32a,
hereto.
Four original Petitioners, Lunz, Maraglino, Negrycz and
O’Hara retired during the course of litigation and a separate
order was entered by the New York Supreme Court with
respect to the relief awarded the Petitioners-retirees, which
was appealed separately from the case at bar.
JURISDICTION
The decision of the Court of Appeals of the State
of New York was entered on November 18, 1993. In
accordance with Rule 13.1 of this Court, this petition is
filed within 90 days after the entry of judgment. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(a) because the decision of the Court of Appeals
draws into question a violation of the equal protection
clause of the Fourteenth Amendment to the Constitution of
the United States.
CONSTITUTIONAL AND STATUTORY
Vv VOLYV
A. Constitutional Provision
The "Equal Protection Clause” of the Fourteenth
Amendment of the United States Constitution, U.S. Const.
Amend. XIV, §1, provides:
Section 1. All persons born of
naturalized in the United States, and
subject to the jurisdiction thereof, are
citizens of the United States and of the
State wherein they reside. No State shall
make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall
any State deprive any person of life,
liberty, or property, without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the
laws.
B. Statutory Provision
Section 61(1) of the New York Civil Service Law,
provides:
Appointment or promotion from an
eligible list to a position in the
competitive class shall be made by the
selection of one of the three persons
certified by the appropriate civil service
commission as standing highest on such
eligible list who are willing to accept
such appointment or promotion.
This case presents the question whether the
respondents denied petitioners equal protection of the laws
in violation of the Fourteenth Amendment when
respondents denied petitioners retroactive pay and seniority
benefits to the date they would have been promoted but
for the wrongful grading of their civil service examination.
The opinion below decided this constitutional issue in a way
that conflicts with the equal protection analysis this Court
has articulated in various decision of this Court, particularly
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96
S.Ct. 2562, 49 L.Ed.2d 520 (1976); Vance v. Bradley, 440
US. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Dandridge v.
Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491
(1970), reh’g denied, 398 US. 914, 90 S.Ct. 1684, 26
L.Ed.2d 80 (1970), Turner v. Fouche, 396 U.S. 346, 362, 90
S.Ct. 532, 24 L.Ed.2d 567 (1970).
A. Statement of Facts
The petitioners and intervenors-petitioners herein are
all members of the New York City Fire Department who
participated in a civil service examination fo. promotion to
lieutenant, "Exam No. 0511". Respondents are the New
York City governmental agencies responsible for the
administration and grading of the exams as well as the
employment and promotion of the candidates, collectively
referred to herein as the "City". Intervenors-Respondents
are a group of firefighters who had passed the exam and
were deemed eligible for promotion, collectively referred to
as the “eligibles”. Petitioners had brought a proceeding in
state court to challenge the grading of their exams, !
alleging that certain of their answers had not been properly
credited. The petitioners’ grades were important since if
they are deemed to have passed, they are placed on an
eligibles list for promotion in accordance with their rank
among the candidates. A hearing was conducted and it was
determined that certain of the petitioners’ answers were not
properly credited. By order of the New York Supreme
Court dated July 11, 1988 and entered on August 5, 1988,
the New York State Supreme Court ordered the City to
regrade the examination and to compile a special eligibles
list based on the regraded scores. (App. F, at 41a). The
City regraded the exam and issued a revised eligible list in
June of 1989.
1 New York Civil Practice Law and Rules (CPLR), Article 78
provides for judicial review of final determinations made by
administrative agencies of government. CPLR § 7801 et seq.
aS) Se
ete: es ee ee
oe ee a ae ce ce
The petitioners, later being joined by various
intervenors-petitioners, collectively referred to hersin as
"petitioners", moved for an order modifying the August 5,
1988 order to grant the petitioners retroactive salary and
seniority benefits to the date the» should have been
promoted had the City correctly graded their exams in the
first instance. Respondents have Opposed this motion based
on New York Civil Service Law, Section 61, which provides
the appointing agency, here the New York City Fire
Department, hereinafter the "FDNY", the discretion to
promote one of the three highest ranking candidates on the
eligible list, and therefore the option to "pass over" a
candidate. The City argued that Civil Service Law, § 61
precludes the relief the petitioners sought since they had no
entitlement to promotion due to this "one-in-three” rule.
Petitioners countered this argument by submitting evidence
that the FDNY always promoted in strict rank order and
never passed over any candidates. Petitioners also argued in
their Memorandum of Law in support of their motion that
another candidate for promotion to lieutenant based on the
same Exam No. 0511 had been awarded retroactive pay and
benefits in McKernan v. City of New York Civil Service
Comm'n, 121 A.D.2d 350, 503 N.Y.S.2d 572 (Ist Dept.
1986), appeal denied, 69 N.Y.2d 607, 514 N.Y.S.2d 1025,
507 N.E.2d 321 (1987). Petitioners argued that the
2
Although the petitioners did not allege equal protection
violations in their Article 78 petition, the party who has
prevailed in the trial court, as petitioners have, may assert in
a reviewing court any ground in support of his judgment,
whether or not it appeared in the initial Dleadings. See,
Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d
491, 496, fn. 6.
7
McKernan case was controlling precedent because these
petitioners were similarly situated to McKernan in that they
had all been denied timely promotions due to the City’s
conduct. The City argued that McKernan did not control
because McKernan missed an examination because of a
line-of-duty injury and the issue there involved the City’s
undue delay in providing a make-up exam to which he was
entitled to as a result of that line-of-duty injury.
B. Prior Proceedings
In a decision dated June 21, 1991, the New York
Supreme Court granted petitioners’ motion to modify the
earlier judgment to include retroactive back pay and
seniority. The Court found that such relief was the only
appropriate relief to make the petitioners whole. (App. C,
at 26a). The Court reasoned that since the petitioners had
in fact already been promoted in strict rank order from the
revised eligibles list, such relief would not in any way
interfere with the FDNY’s discretionary authority under the
one-in-three rule. (App. C, at 23a). The Court noted that
the McKernan case, involving the same promotional Exam
No. 0511, was factually similar to this case, since McKernan
too had already been promoted in rank order and that the
petitioners here, and in McKernan, were "not asserting a
right to be appointed but a right to equal benefits upon
appointment". (App. C, at 22a). In an order dated
September 18, 1991, and entered on October 31, 1991, the
Court awarded, inter alia, the petitioners "retroactive back
pay from the date that they should have been promoted
through the date of their actual promotion, and full
8
seniority and pay longevity benefits, nunc pro tunc to the
date that they would have been promoted had the exam
initially been correctly scored...". (App. D, at 37a).
The respondents appealed said order to the New
York State Supreme Court, Appellate Division, First
Department. Petitioners argued in their appellate brief that
they were entitled to those benefits under the principles of
equal protection based on the McKernan case. The
Appellate Division unanimously affirmed. (App. B, at 15a).
The Appellate Division noted that petitioners were not
asserting a right to be appointed but equal benefits upon
appointment. The court also cited McKernan as controlling
precedent. (App. B, at 16a).
The respondents then moved for leave to appeal to
the Court of Appeals of the State of New York and were
granted permission to appeal. On that appeal petitioners
again argued that they were similarly situated to their
colleague in the McKernan case and that the principles of
equal protection require that petitioners be awarded the
relief sought. Respondents argued that petitioners had no
basis for their equal protection argument because they were
not similarly situated to any other candidates who were
promoted from the list since McKernan was distinguishable.
The Court of Appeals decision dated November 18,
1993, reversed the New York Supreme Court and Appellate
Division decisions. (App. A, at 1a). The Court of Appeals
held that to award such retroactive benefits violated the
policy underlying Civil Service Law § 61 that competitive
civil service examinees gain no entitlement to promotion by
passing an examination for the position sought. (App. A, at
Sa). The Court of Appeals rejected petitioners equal
a
protection argument finding that petitioners were not
similarly situated to Mr. McKernan or any other candidates
who had been granted retroactive benefits and that the City
had established a reasonable basis for not adhering to the
cKernan precedent. (App. A, at 7a).
Reasons For GRaNTING THE WRIT
I. This Case Involves Important Constitutional Questions
as to Whether The Equal Protection Clause of The
Fourteenth Amendment Has Been Violated by The
City’s Refusal to Grant These Petitioners Retroactive
Benefits That Have Previously Been Granted to Civil
Servants Who Have Been Promoted Belatedly Due to
Conduct Attributable Only to The City.
A. The City’s Refusal to Grant These Retroactive
Benefits And The Court of Appeals’ Decision
Violates The Equal Protection Clause of The
Fourteenth Amendment Because The Challenged
Classification is Not Relevant to The Achievement
of The Articulated Governmental Objective.
This case invites the Court to determine if
petitioners, a group of civil service employees whose
promotions were substantially delayed due to a grading
error made by the City are entitled, under the Equal
Protection Clause, to the same benefits upon promotion as
another candidate whose promotion had been delayed due
to the City’s failure to provide a timely make-up exam to
those unable to take the original exam due to line-of-duty
injuries. Upon reviewing the facts of this case and the
standard to be applied under the Equal Protection Clause,
it must be concluded that such a differentiation is not
reasonable and does not further any valid objective.
10
While this particular issue is one of first impression,
this Court’s standard of review for such a claim has been
articulated in cases such as Massachusetts Bd. of Retirement
v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520
(1976); as well as, Vance v. Bradley, 440 U.S. 93, 99 S.Ct.
939, 59 L.Ed.2d 171, 176 (1979) (whether the varying
treatment of different groups is so unrelated to the
achievement of legitimate purposes); Dandridge v. Williams,
397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970),
reh’g denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80
(1970) (government action must be rationally based and free
from invidious discrimination); Tumer v. Fouche, 396 U.S.
346, 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970)
(whether the challenged classification rests on grounds
wholly irrelevant to the achievement of a valid state
objective). In accordance with these cases, the standard
applicable in the instant case is whether the challenged
classification rationally furthers the purpose articulated by
the government agency. Massachusetts Board of Retirement
v. Murgia, 427 U.S. at 314, 49 L.Ed.2d at 525. To apply
this test the classification and the governmental objective
purportedly advanced by the classification must be identified.
The classification must then be analyzed in order to
determine whether it rests upon some difference that is
related to an articulated objective so that all people
similarly situated are treated alike. Applying this test to the
case at bar, it must be concluded that the challenged
classification is irrelevant and unrelated to the achievement
of the governmental goal articulated by the City. The
Court of Appeals decision is, therefore, counter to the well
established analysis employed by this Court.
11
Petitioners have claimed throughout this litigation
that they are similarly situated to other civil service
employees who have been granted or awarded retroactive
back pay and benefits. In particular, petitioners claim they
are similarly situated to the petitioner in McKernan v. City
of New York Civil Serv. Comm'n, 12 A.D.2d 350, 503
N.Y.S.2d 572 (1st Dep't. 1986), who was promoted to
lieutenant in the FDNY pursuant to the same examination
as petitioners. The City argues that it properly did not
grant the retroactive benefits to petitioners, despite such
benefits having been awarded in McKernan due to a
classification based on line-of-duty injury. The City claims
that McKernan was awarded retroactive seniority in
accordance with a policy of the FDNY to award retroactive
seniority to firefighters who, after missing an examination
because of a line-of-duty injury, take and pass a make-up
examination. The City further argued that it was because of
this policy that the New York State Supreme Court,
Appellate Division, First Department, held that Mr.
McKernan was entitled to back pay as well as seniority.
The City argued, therefore, that the petitioners were not
similarly situated to McKernan, and the majority opinion of
the Court of Appeals agreed. However, the McKernan
decision makes clear that the basis for the back pay relief
awarded was to make Mr. McKernan whole and to "rectify
the consequences of delay in administering the make-up
exam". McKernan, 121 A.D.2d at 352, 503 N.Y.S.2d at 574.
The consequence, as identified by the court, was an
untimely promotion. The court’s decision, while recognizing
Mr. McKernan’s right to a make-up exam because of his
line-of-duty injury, did not make the award based on that
SS
12
line-of-duty injury. Instead, the court awarded the back pay
because, due to conduct on the part of the City, Mr.
McKernan was not timely promoted due to no fault of his
own. The petitioners here, who took Exam No. 0511 as did
Mr. McKernan, were also denied a timely promotion due to
conduct of the City, namely a failure to properly grade
their exams. Therefore, petitioners are similarly situated as
Mr. McKernan in all legally significant ways.
As indicated earlier, the City’s stated objective in
denying this retroactive pay and seniority for petitioners is
to preserve the so called "one-in-three" rule and the
discretionary authority it confers on the various agencies of
city government that are subject to the New York Civil
Service Law. The challenged classification does nothing to
further that objective, and therefore, is not rationally related
to the achievement of a valid objective.
The dissenting opinion of Judge Titone in the Court
of Appeals decision, while not specifically addressing the
equal protection argument, recognized that the majority's
denying these petitioners the retroactive benefits and
departing from prior precedent did not further the objective
of preserving the one-in-three rule or the discretionary
authority of the FDNY. Judge Titone states: *...the majority
= has failed to articulate any compelling policy rationale to
justify its departure from Abrams or the withholding or
retroactive benefits from civil servants who have been
harmed, not because of the appointing authority’s protected
exercise of discretion, but due to that body's erroneous
grading of the promotional exam. Accordingly, I respectfully
dissent from that portion of the majority's holding which
deprives petitioners and intervenors who have already been
13
promoted by the Fire Department of their retroactive
relief." (App. A, at 10a). Judge Titone goes on to state:
"As articulated by the majority, the purpose of precluding
the courts from fashioning mandatory appointment-related
remedies is to preserve the historical discretion reserved to
the governmental appointing authorities... That purpose
does not preclude awards of retroactive pay and benefits
where the appointing authority has exercised its discretion
by selecting the aggrieved candidates for appointment.”
(App. A, at 11a). This supports petitioners’ position herein,
that the differentiation between Mr. McKernan and these
petitioners, and the denial of these benefits to these
petitioners cannot be concluded to further the articulated
governmental purpose.
Mr. McKernan was subject to the one-in-three rule
regardless of the fact that he had the right to take a make-
up because of a line-of-duty injury. His line-of-duty injury
status gave him no more entitlement to promotion than if
he had not been injured. Once the City administered the
make-up and his exam was graded and he was ranked on
the eligibles list, Mr. McKernan too could have been
"passed over" under the one-in-three rule.> Therefore, his
having been on medical leave due to a line-of-duty injury,
entitling him to a make-up exam, has absolutely no
relationship to the objective of preserving the one-in-three
rule or the discretionary authority of the appointing agency
in making promotions from an eligibles list. Under the
3 it should be noted that neither McKernan, nor any of the
petitioners herein had been passed over. In fact, no one had
been passed over and promotions were based on strict rank
order.
eerie i ai
14
standards articulated by this Court, as cited above, the
denial of these benefits has no rational relationship to the
objectives and, therefore, such denial violates the equal
protection clause.
In Abrams v. Bronstein, 33 N.Y.2d 494, 354 N.Y.S.2d
926, 310 N.E.2d 528 (1974), the Court of Appeals for the
State of New York was faced with a very similar case as
the one at bar. In that case the Court went through a
concise constitutional analysis under the Equal Protection
Clauses of both the State and Federal Constitutions. In
that case one group of police lieutenants had brought an
Article 78 proceeding, similar to the one here, challenging
the validity of some of the approved answers to the exam.
That Article 78 proceeding was entitled Amendola v.
Hoberman, (not officially reported), and was settled by a
stipulation, which included provisions that the Amendola
petitioners would be granted retroactive salary increments
upon actual appointment to lieutenant. The Amendola
petitioners were then in fact promoted and granted these
retroactive benefits. Thereafter, another group of
lieutenants that were promoted off the same list, and who
had not participated in the Amendola petition filed the
Article 78 petition in Abrams v. Bronstein, supra, challenging
the City’s refusal to pay them the same retroactive benefits
as those who had participated in the Amendola petition.
Abrams, 33 N.Y.2d at 491, 354 N.Y.S.2d at 929. They
challenged this differentiation based on equal protection
grounds. The Court noted that had the exams been
properly graded the promotions would have been made in
accordance with the candidates rank on the list and the
candidates would have begun performing as lieutenants and
15
they would have been receiving their annual salary
increments. The Court stated "[t]he fact that these events
did not come to pass as outlined above is not attributable
to any of the candidates, either the Amendola or the
Abrams petitioners..." Abrams, 33 N.Y.2d at 495, 354
N.Y.S.2d at 931. The same is true here. The fact that
both Mr. McKernan and the petitioners herein were denied
timely promotions are not attributable to any conduct on
their part, but rather such untimely promotions were due to
the conduct of the City. Therefore, the petitioners in the
instant case have the same right to retroactive benefits as
the Abrams petitioners. The City also raised the one-in-
three rule in Abrams as a basis to deny retroactive benefits.
The court rejected the City’s argument stating: “In fact,
however, the petitioners were all appointed in regular order
according to the listings. Furthermore, this justification
misses the point because the petitioners are not asserting a
right to be appointed but a right to equal benefits upon
appointment.” Abrams, 33 N.Y.2d at 493, fn. 6, 354
N.Y.S.2d at 930. The same is true here. The petitioners
herein have all been appointed in rank order and now seek
equal benefits upon appointment. The petitioners’ benefits
should be equal to those awarded in McKernan and Abrams
as well as to those candidates who were timely promoted as
a result of Exam No. 0511. The petitioners herein are no
less entitled to retroactive benefits than the Abrams
petitioners, therefore, although Abrams involved a different
agency and was decided long before the instant case, the
fact is that these petitioners were also similarly situated to
the Abrams petitioners. In the instant case, the Court of
Appeals rejected the petitioners reliance on Abrams in their
16
equal protection argument, stating that petitioners were
different from the Abrams petitioners because the
petitioners were not similarly situated to any members of
the FDNY, whereas the Abrams petitioners were similarly
situated to the Amendola petitioners. However, for the
reasons stated above, the petitioners herein are, in fact,
similarly situated with McKernan, as well as the Abrams
petitioners. In fact, these petitioners are actually entitled to
these benefits because they are similarly situated to all the
candidates who were promoted as a result of Exam No.
0511 since they all took and passed the exam and were
deemed eligible by the FDNY to be promoted in strict rank
order. The objective of preserving the FDNY’s discretion
to pass over candidates in accordance with the one-in-three
rule cannot be furthered by denying these petitioners the
same benefits as other civil service candidates who were
wrongfully denied timely promotions due to conduct on the
part of the governmental agency, or in fact other candidates
who were promoted without delay from the same exam.
Therefore, this Court’s equal protection standard has not
been satisfied and petitioners have been denied equal
protection of the laws.
17
C ONCLUSION
For these reasons, a writ a certiorari should be
issued to review the opinion and judgment of the Court of
Appeals.
Dated: Garden City, New York
February 8, 1994
Respectfully submitted,
Joun F. MILs
Counsel of Record
CoLLERAN, O’Hara & MILLS
1225 Franklin Avenue, Suite 450
Garden City, New York 11530
(516) 248-5757
Attorneys for Petitioners and
Intervenors- Petitioners
In The
Supreme Court of the Gniled States
October Term, 1993
a
LAWRENCE ANDRIOLA, JAMES A. BURKE, THOMAS J. CAPANELLI, JOHN
CIORCIARI, LAWRENCE E. CONNORS, JOAQUIM P. DASILVA, ALFRED J.
PAUVEL, ANTHONY L. FRAVOLA, JOSEPH J. KENNINGTON, ROBERT W.
LINHART, JOSEPH LUNZ, JOSEPH MARAGLINO, PATRICK H. MCDERMOTT,
JAMES R. MCENROE, THOMAS M. MCMAHON, PETER T. MORGAN, JOHN F.
MULVEY, RAYMOND NEGRYCZ, JAMES W. O’BRIEN, ROBERT J. O’HARA,
RUSSELL L. OLSON, JOHN F. PETERSON, MICHAEL JOHN PUZZIFERRI,
THOMAS F. REGAN, RICHARD J. SMITH and JOSEPH SOLAZZO,
-and- Petitioners,
MICHAEL ANTINORO, PETER BIANCHINI, ROBERT BRADLEY, ALLEN
DELGANDIO, EDWARD ELLISON, HERBERT FISCHER, WILLIAM GRONEMAN,
JOHN GULOTTA, ADOLF HUTTER, JOHN KLEEHAAS, JAMES KLESS, DOUGLAS
KRUGER, CORNELIUS LEHANE, CHARLES MCCARTHY, DONALD MC-
CULLOUGH, DENIS NEIGAN, LEROY O’NEIL, ERIC REHREIN, JOHN REILLY,
DENNIS SCANLON, FRANCIS SHANAGAN, JOHN STACK, PATRICK WELSH,
SAM WHITE, CHARLES WILLIAMS and RICHARD ABBOTT,
-against- Intervenors-Petitioners,
JUAN U. ORTIZ, as City Personnel Commissioner, Department of Personnel,
and as Chairman of the Civil Service Commission of the City of New York,
and JOSEPH E. SPINNATO, as Fire Commissioner of the City of New York,
-and- Respondents,
WILLIAM BARRETT, JOSEPH BACCARI, JAMES O’DONNELL, on behalf of them-
selves and other successful candidates on Promotion List 5608 (Lieutenant,
NYC Fire Department) as members of Lieutenant Eligible Association 5608,
Intervenors-Respondents.
APPENDIX
Appendix A - Opinion of The State of New
York Court of Appeals, Decided November
18, 1993 (82 NY2d 320) [Pages la - 14a]
State of New Work
Court of Appeals
In the Matter of Lawrence
Andriola, et al.,
Respondents,
Vv.
Juan U. Ortiz, as City Personnel
Commissioner, Department of Personnel,
and as Chairman, of the Civil Service
Commission of the City of New York, et al.,
Appellants,
and William Barrett, et al.,
Intervenors- Respondents.
Argued October 14, 1993, decided November 18, 1993
OPINION OF THE COURT
LEVINE, J.:
la
Petitioners and intervenors were New York City
firefighters when petitioners brought the instant CPLR
Article 78 proceeding challenging respondents’ grading of 12
questions on a promotional examination for the position of
Fire Department Lieutenant given October
Pursuant to the order of Supreme Court, New York
2a
APPENDIX A
[Opinion of The State of New York Court of Appeals)
County, dated July 11, 1988, the examination was regraded
and, as a result, a special eligible list was promulgated from
which those petitioners then still on active duty were
promoted to lieutenant, as were intervenors. Petitioners
then moved for a modification of the July 11, 1988 order
to provide for retroactive seniority benefits and back pay
from the date each of them would have been promoted
from the original eligible list had the examination been
properly graded. They were joined in this request by
intervenors. Additionally, four of the original petitioners
who had retired before the revised promotional list was
promulgated, but who had passed the written portion of the
examination as regraded, sought retroactive seniority and
back pay from the date they claimed they would have been
promoted had the original examination been properly
graded.
Respondents opposed any award of retroactive
seniority benefits for back pay on the principal ground that
to do so would be in derogation of their statutory
discretion as a governmentai civil service appointing
authority to select for appointment or promotion any one
of the three highest persons on the eligible list, as provided
under Civil Service Law § 61 (the "one-in-three rule’).
Supreme Court rejected this objection. It reasoned that,
because petitioners and intervenors had already been
promoted from the special eligible list following the
regrading of the examination, awarding them retroactive
seniority benefits and back pay to the date they would have
been promoted had the examination been properly graded
in the first instance could not be said to impinge on
respondents’ statutory discretion under the one-in-three rule.
APPENDIX A Ja
[Opinion of The State of New York Court of Appeals]
Such an award, the court held, merely served to "make
whole” the petitioners still in active service for being
deprived of the earlier promotions they would have
received. Furthermore, the court found that the New York
City Fire Department historically and throughout the
pertinent period had followed a consistent policy of
promoting to the ranks of lieutenant and above the highest
persons on the applicable list. This abdication of discretion
also obviated any need to preserve respondents’ discretion
under the one-in-three rule, the court concluded.
As to the four original petitioners who had retired
from service before the special eligible list was promulgated,
Supreme Court also fashioned a rather intricate remedy to
place them in the same position they would have been in
had their examinations initially been graded properly.
The Appellate Division affirmed (186 AD2d 423).
Relying on its own decision in Matter of McKernan v City
of New York Civil Serv. Commn. (121 AD2d 350, lv denied
69 NY2d 607) and this Court’s decision in Matter of
Abrams v Bronstein (33 NY2d 488), the Court concluded
that the award of retroactive benefits did not interfere with
respondents’ statutory discretion under the one-in-three rule,
because it merely placed petitioners and intervenors in the
same position that they would have been in had the
examination been correctly graded in the first instance. We
granted leave to consider whether the award of retroactive
seniority benefits and back pay antedating petitioners’ and
intervenors’ actual promotions to Fire Department
Lieutenant is barred by reason of Civil Service Law § 61.
We reverse. Our decisions repeatedly have
acknowledged the importance of the discretionary
ohne
4a
APPENDIX A
[Opinion of The State of New York Court of Appeals]
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
(see, City of Schenectady v State Div. of Human Rights, 37
NY2d 421, 430; Matter of Cassidy v Municipal Civil Serv.
Commn. of City of New Rochelle, 37 NY2d 526, 528-529;
Matter of Berger v Walsh, 291 NY 220, 223). Consistent
with our adherence to the historical policy upon which Civil
Service Law § 61 is based, we have held that 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 (Matter of Cassidy v Municipal Civil Serv. Commn. of
City of New Rochelle, supra, at 529; see also, Matter of
Deas v Levitt, 73 NY2d 525, 532, cert denied 493 US 933),
nor "thereby gain a vested right to appointment to the
position” (Hurley v Board of Educ. of City of New York, 270
NY 275, 279).
It follows from the foregoing that petitioners and
‘ntervenors would not have acquired any enforceable right
or even any legally cognizable interest in appointment to
the position of Fire Department Lieutenant if the
examination they initially took for that position had been
properly graded and resulted in their achieving passing
grades. This would have remained so despite the existence
of a past practice of the New York City Fire Department
to promote the top graded examinees to lieutenant from
the eligible list since, surely, no court would find it arbitrary
or capricious on the part of the appointing authority for it
to abandon that practice at any time in favor of the
exercise of its statutory discretion under Civil Service Law
iz!
APPENDIX A 5a
[Opinion of The State of New York Court of Appeals)
$61 (see, Matter of Delicati v. Schechter, 3 AD2d 19, 23-24
[Breitel, J.]). Indeed, petitioners and intervenors have not
argued that the practice of the Fire Department to appoint
lieutenants strictly on the basis of test scores created any
enforceable entitlement in their favor to promotion from
the eligible list if the examination had been properly graded
in the first instance.
One must conclude from the foregoing that Supreme
Court’s direction that petitioners and intervenors receive
retroactive seniority benefits and back pay -- in effect
thereby mandating their retroactive promotion to Lieutenant -
-is fundamentally inconsistent with the letter and spirit of
Civil Service Law § 61, and with our previously cited
holdings that the only remedy a Civil Service examinee in
the competitive class is entitled to for defects in the
appointive or promotional process such as that presented
here is not appointment or promotion, but a judicial
direction for reconsideration after the prior defect has been
corrected (see, City of Schenectady v State Div. of Human
Rights, supra; Matter of Berger v Walsh, supra). The
retroactive promotions to lieutenant effected by Supreme
Court’s order cannot be rationalized as merely making
petitioners and intervenors "whole". This point was well
made in Matter of State Div. of Human Rights (Cottongim)
v County of Onondaga Sheriff's Dept. (71 NY2d 623). In
that case, we contrasted the available remedy for a
wrongfully discharged employee (as was therein established)
with that for employees not fairly considered for
appointment or promotion (as is the case here) (id. at 634).
We held in Matter of State Div. of Human Rights
(Cottongim) that reinstatement is an appropriate remedy in
6a APPENDIX A
[Opinion of The State of New York Court of Appeals]
the case of a wrongfully discharged employee; it restores to
the employee that which he or she possessed before the
wrong was committed (id). On the other hand, we
explained the holdings in our previous decisions dealing
with defects in the appointment process that "where a
person has not been considered fairly for an appointment
by a public employer, the remedy that generally will make
the individual whole *** is that the individual be fairly
considered for the appointment. These cases recognize that
it may be improper to go further and require that the
person be appointed to the position because this could
award more than a complainant was entitled to before the
[defect] took place” (id. [emphasis supplied)).
So too here, when petitioners established a defect in
the promotional process, i.e., the improper grading of the
examination, the appropriate remedy to make them whole
under our precedents was to correct the defect they
established, by regrading the examinations and promulgating
a special eligible list, and then giving them due
consideration for promotions from their positions on the
new list (Matter of State Div. of Human Rights [Cottongim]
v County of Onondaga Sheriff's Dept., supra). This remedy,
of course, ultimately led to their actual promotion, but that
result was not dictated in order to make them whole.
Accordingly, Supreme Court erred when it granted
relief clearly in excess of the appropriate remedy here, by
effectively dictating the retroactive promotion of petitioners
and intervenors. This result, as we have concluded, violated
the policy underlying Civil Service Law § 61 that
competitive Civil Service examinees gain no cognizable legal
rights to employment or promotion by passing an
APPENDIX A 7a
[Opinion of The State of New York Court of Appeals]
examination for the position sought. The courts may not
dictate retroactive appointment or promotion in violation of
this strong State policy on the factual supposition, no
matter how reasonable, that the appointive process worked
properly initially, the candidate would have received earlier
appointment or promotion.
To the extent that the decision in Matter of
McKernan v City of New York Civil Serv. Commn. (121
AD2d 350, supra) supports the award of retroactive
seniority benefits and back pay as appropriate relief on a
successful challenge to deficiencies in the Civil Service
appointive or promotional process such as was presented
here, that decision is disapproved. Moreover, petitioners
and intervenors reliance on the McKernan case to estabiish
their right to retroactive seniority benefits and back pay
under the Equal Protection Clauses of the Federal and
State Constitutions (US Const, 14th Amend; NY Const, art
1,§ 11) is also unavailing. The prevailing party in Matter of
McKernan (supra) and petitioners here are not similarly
situated, and respondents here have clearly established here
a reasonable basis for not adhering to the McKernan
precedent in their treatment of petitioners and intervenors.
Finally, nothing that we have said here is
inconsistent with our decision in Matter of Abrams v
Bronstein (33 NY2d 488). In Matter of Abrams, a group of
New York City police officers who had brought a separate
court challenge to the grading of a police lieutenant
examination entered into a stipulation with the City of New
York that they would receive retroactive benefits, including
salary increments, in the event that they won their suit and
as a result were eventually appointed lieutenant from the
8a APPENDIX A
[Opinion of The State of New York Court of Appeals]
revised eligible list (id. at 490-491). The petitioners in
Matter of Abrams had not joined in the prior litigation, but
had taken the same examination and had been promoted to
police lieutenant from the same revised list (id. at 491).
We held in Matter of Abrams that equal protection
prevented the City of New York from discriminating
between petitioners and their peers as to the retroactive
benefits in question merely because the latter group had
brought the lawsuit challenging the grading of the
promotional examination (id. at 494-495). In the instant
case, petitioners and intervenors have not pointed to any
similarly situated members of the New York City Fire
Department who have received the retroactive benefits they
seek here. Thus, Matter of Abrams v Bronstein (supra) does
not support their claim.
For all the foregoing reasons, the order of the
Appellate Division should be reversed, with costs, and the
motion to modify the July 11, 1988 order and judgment of
Supreme Court denied.
APPENDIX A 9a
[Opinion of The State of New York Court of Appeals]
Titone, J. (concurring in part and dissenting in part).
I concur in the majority opinion to the extent that
it bars the four retired petitioners, who have not been
promoted by respondent Fire Department to the position of
Lieutenant, from receiving the claimed retroactive relief. As
the majority concludes, Supreme Court improperly ordered
their retroactive promotion and thereby usurped the
discretionary authority of the appointing agency to make
such appointment determinations under Civil Service Law
§ 61(1)’s “one-in-three” rule. However, in my view, the
same rationale has no application in the context of court
orders directing retroactive back pay and seniority benefits
to. individuals who have already been appointed or
promoted and who are merely seeking to recover the
benefits withheld as a result of a past wrong. The
majority's failure to distinguish between the type of relief
granted to the retired firefighters on the one hand --
retroactive promotion and benefits -- and to the promoted
firefighters on the other -- retroactive benefits incidental to
their promotion -- represents an unwarranted application of
the "one-in-three” rule that has unnecessarily deprived a
group of civil servants of the relief they deserve which in
no way encroaches on any statutory discretion accorded to
the Fire Department’s appointing authority under the Civil
Service Law. The Fire Department has already exercised
that discretion, without court interference, in making the
promotional appointments. Additionally, the award of
retroactive benefits as incidental relief to the promoted
firefighters is directly supported by this Court's precedent in
ooo
10a APPENDIX A
[Opinion of The State of New York Court of Appeals)
Matter of Abrams v Bronstein (33 NY2d 488). Beyond that,
the majority has failed to articulate any compelling policy
rationale to justify its departure from Abrams or the
withholding of retroactive benefits from civil servants who
have been harmed, not because of the appointing
authority’s protected exercise of discretion, but due to that
body’s erroneous grading of the promotional examination.
Accordingly, I respectfully dissent from that portion of the
majority’s holding which deprives petitioners and intervenors
who have already been promoted by the Fire Department
of their retroactive relief.
Initially, I agree with the majority that no firefighter
would "have acquired any enforceable right or even and
cognizable interest in appointment to the position of Fire
Department Lieutenant” had the original grading of the
examination been proper and had they achieved passing
scores (Maj. opn at 4). In fact, it is well-settled that the
power granted to the appointing officer by Civil Service
Law §61(1)’s "one-in-three” selection rule clearly prevents
the courts from directing that authority to appoint (Matter
of Cassidy v Municipal Civil Serv. Commn. of City of New
Rochelle, 37 NY2d 526, 528-529, Berger v Walsh, 291 NY
220, 222-223; Matter of Delicati v Schechter, 3 AD2d 19,
23), or reinstate (see City of Schenectady v State Div. of
Human Rights, 37 NY2d 421, 430) a candidate (cf, Matter
of State Div. of Human Rights (Cottongim) v County of
Onondaga Sheriff's Dep't, 71 NY2d 623, 634; Matter of
Delicati, supra at 23).
However, it does not necessarily follow, as the
majority holds, that the existence of that rule also precludes
a claim for retroactive benefits sought by petitioners who
|
)
AppeNDIx A Ila
[Opinion of The State of New York Court of Appeals)
have already, in fact, been appointed. As articulated by the
majority, the purpose of precluding the court from
fashioning mandatory appointment-related remedies is to
preserve the historical discretion reserved to the
governmental appointing authorities (Maj. opn at 3-4). That
purpose does not preclude awards of retroactive pay and
benefits where the appointing authority has exercised its
discretion by selecting the aggrieved candidates for
appointment.
Significantly, the “one-in-three” rule justification for
precluding a court from directing an appointing authority to
promote a candidate has never been extended by this Court
to bar a grant of retroactive benefits to a candidate who
has already been appointed by that authority. Indeed,
substantially all of the cases that the majority cited involved
petitioners who were denied judicial relief, including claims
for retroactive pay and benefits, because they were primarily
seeking to compel their appointment or reinstatement after
being passed over or discharged (see Matter of State Div. of
Human Rights (Cottongim), supra; City of Schenectady,
supra; Matter of Cassidy, supra; Berger v Walsh, supra;
Delicati, supra). None of those cases involved the denial of
claims for retroactive benefits asserted by petitioners who
had already been appointed to the post they sought.
The flaw in the majority’s analysis here is its
characterization of Supreme Court’s directive as an order
"mandating * * * retroactive promotion” (Maj. opn at 5). As
the majority itself recognizes, however, Supreme Court did
not order the promotion of those petitioners (see Maj. opn
at 6-7); rather, in essence, the court ordered only that the
promoted firefighters be given a retroactive appointment
12a APPENDIX A
[Opinion of The State of New York Court of Appeals}
date to facilitate the calculation of benefits wrongfully
withheld. Indeed, those firefighters did not bring this
proceeding to compel the commissioner to appoint them
because they were “not fairly considered for appointment or
promotion” (Maj. opn at 6). Rather, they seek, as relief
incidental to their resulting promotions, merely to be placed
in the position that they would have been in had the
appointing authority properly graded the examinations
initially.
This Court and others have previously recognized
that an order granting retroactive promotion is distinct from
an order directing retroactive benefits and that, despite the
discretionary authority vested in the appointing officer, the
latter award is available to a petitioner who has already
been promoted in order to remedy the effects of unfair
grading of the promotional exam (see Matter of Abrams v
Bronstein, 33 NY2d 488; McKernan v City of New York
Civil Ser. Commn., 121 AD2d 350). In fact, the argument
asserted by respondents and accepted by the majority -- that
the award of retroactive benefits to petitioners would, like
an order compelling appointment, undermine the appointing
authority's discretionary power -- is not novel. In Matter of
Abrams (supra), this Court rejected that identical claim.
Relying on the pivotal fact that the petitioners had all
already been appointed "in regular order according to the
listings", the Court concluded that the proposed application
of the "“one-in-three" selection rule asserted to justify
withholding those retroactive benefits from the petitioners
"misses the point because the petitioners are not asserting a
right to be appointed but a right to equal benefits upon
appointment" (id. at 493, fn 6 [emphasis supplied]). Despite
APPENDIX A 13a
[Opinion of The State of New York Court of Appeals)
its protestations to the contrary, the majority's holding
cannot be reconciled with the underscored language in
Abrams.
Since it would be impossible for the courts to
interfere with the Fire Department’s power to appoint the
promoted firefighters because that appointing authority has
already exercised its discretion by so doing, the sole inquiry
for the courts concerns the remedy to be afforded
petitioners to make them whole. Well-settled is the rule
that a remedy should be coextensive with the wrong it is
designed to redress (Weissman v Evan, 56 NY2d 458, 467).
An award of retroactive back pay and seniority benefits
calculated from the date the petitioners would have been
promoted -- although “disapproved” of by the majority for
reasons which remain to be explained (see Maj. opn at 7) --
is sufficient to redress the wrong to petitioners because it
"restores [them] to the position in which [they] would have
been had *** [they] timely been promoted” (Matter of
McKernan v City of New York Civil Serv. Commn., 121
AD2d 350, 352; see also Anderson v County of Suffolk, 97
AD2d 448, 449; CPLR 7806).
Contrary to respondent’s assertion that the date the
petitioners would have been promoted is speculative and
thus impossible to determine, the Fire Department’s policy
of promoting in strict numerical order renders those dates
readily ascertainable. Thus, in this case, the award of
retroactive benefits may simply be calculated from the
promotion date of the firefighter who previously held the
ranking on the original jist that is now held by the
petitioner on the revised list. In fact, the record reveals
that the Fire Department has utilized the same system in
l4a AppeNDIx A
[Opinion of The State of New York Court of Appeals]
the past to project retroactive seniority dates upon court-
ordered regrading of a licutenant’s examination so_ that
firefighters who would have been promoted by a certain
cutoff date after the reranking could be certified as cligible
in time to take the promotional exam for Captain.
In sum, because I cannot agree that a court's award
of back pay to petitioners after they have been duly
appointed is inconsistent with the "one-in-three” rule, and
because the majority's justification for denying retroactive
benefits to civil servants who have been promoted belatedly
is unconvincing and departs from this Court’s clear
precedent, I would modify the Appellate Division order
insofar as it granted such relief to the retired petitioners,
and otherwise affirm the awards to those petitioners and
intervenors already promoted by the Commissioner.
PTT TTT TTT Te A
Chief Judge KAYE and Judges SIMONS, HANCOCK, Jr.,
BELLACOSA and SMITH concur with Judge LEVINE;
Judge TITONE dissents in part in a separate opinion.
Order reversed, etc.
15a
Appendix B - Decision And Order of The Supreme
Court of The State of New York, Appellate
Division, First Department, Entered (October
13, 1992 (186 A.D.2d 423) [Pages 15a - 17a]
In the Matter of the Application of
Lawrence Andriola, et al.,
Petitioners- Respondents,
For Judgment pursuant to Article 78
of the CPLR,
against.
Juan U. Ortiz, etc., et al
Respondents-Appellants,
and
William Barrett, et al.,
Intervenors- Respondents
Order and judgment (one paper), Supreme Court
New York County (Kristin Booth Glen, J.), entered
October 31, 1991, which grants petitioners and intervenors
seniority benefits and back pay, retroactive to the dates that
they would have been promoted, if their promotional
examinations had been correctly graded in the first instance,
is unanimously affirmed, without costs.
Petitioners were New York City Firefighters when
they instituted the instant Article 78 proceeding to
challenge the respondents’ grading of twelve questions on
promotional examination number 0511, given October 31,
1981, for the position of Fire Department Lieutenant.
16a APPENDIX B
[Decision And Order of The Appellate Division)
After the examination was regraded a special eligible list
was prepared, and those petitioners on active service were
promoted. The other petitioners retired.
Thereafter, petitioners moved for retroactive back
pay and seniority benefits, and were joined by intervenors,
who were promoted from the revised list.
On appeal respondents contend that the “one in
three rule", contained in Civil Service Law § 61, as well as
in rule 4.7.1 of the Rules of the New York City
Department of Personnel (59 RCNY Appendix A, 4.7.1)
bars the award of retroactive benefits to the petitioners,
upon the ground that such an award would undermine the
discretionary power of the appointing authority. They
further contend that the award to the intervenors is barred
by the constitutional proscription against gifts of public
funds.
Since the petitioners have all already been
promoted, and those promotions were made pursuant to the
long-standing practice and tradition of the Fire Department
to promote in strict numerical order, rather than by use of
the "one in three rule", the award of retroactive benefits
will not interfere with the discretionary power of the
appointing authority. The relief granted simply places the
petitioners who had not retired in the same position that
they would have been in if the examination had been
correctly graded in the first place (see Matter of McKernan
v City of New York Civ. Serv. Commn., 121 AD2d 350,
352, lv denied 69 NY2d 607). "[Pletitioners are not
asserting a right to be appointed but a right to equal
benefits upon appointment.” (Matter of Abrams v Bronstein,
33 NY2d 488, 493, n6).
APPENDIX B 17a
[Decision And Order of The Appellate Division]
We agree with the IAS Court that equal
protection entitles the intervenors to the same retroactive
relief as has been awarded to the petitioners, and the
retired petitioners the relief granted to them. The relief
properly places them, as nearly as possible, in the position
they would have been had the test been properly graded in
the first instance (Abrams, supra).
We have examined the respondents’ remaining
arguments and find them to be without merit. Concur -
Ellerin, J.P., Wallach, Ross, Kassal and Rubin, JJ.
18a
Appendix C - Decision of Kristin Booth Glen, J.,
Supreme Court State of New York, County of
New York, Dated June 21,1991 [Pages 18a - 32a)
SUPREME COURT STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 26
LAWRENCE ANDRIOLA, JAMES A. BURKE,
THOMAS J. CAPANELLI, JOHN CIORCIARI,
LAWRENCE E. CONNORS, JOAQUIM P. DASILVA,
ALFRED J. PAUVEL, ANTHONY L. FRAVOLA,
JOSEPH J. KENNINGTON, ROBERT W. LINHART,
JOSEPH LUNZ, JOSEPH MARAGLINO, PATRICK
H. MC DERMOTT, JAMES R. MC ENROE, THOMAS
M. MC MAHON, PETER T. MORGAN, JOHN F.
MULVEY, RAYMOND NEGRYCZ, JAMES W.
O'BRIEN, ROBERT J. O'HARA, RUSSELL L.
OLSON, JOHN F. PETERSON, MICHAEL JOHN
PUZZIFERRI, THOMAS F. REGAN, RICHARD J.
SMITH and JOSEPH SOLAZZO,
Petitioners,
For a Judgment Pursuant to Article 78 of the Index No.
Civil Practice Law & Rules, 29966/82
-against-
JUAN U. ORTIZ, as City Personal Commissioner,
Department of Personnel, and as Chairman of the
Civil Service Commission of the City of New York,
and JOSEPH E. SPINNATO, as Fire Commissioner
of the City of New York,
Respondents,
-and-
WILLIAM BARRETT, JOSEPH BACCARI, JAMES
O'DONNELL, on behalf of themselves and other
successful candidates on Promotion List 5608
(Lieutenant, NYC Fire Department) as members
of Lieutenant Eligible Association 5608,
Intervenors-Respondents.
Appenpix C 19a
[Decision of The Supreme Court State of New York]
KRISTIN BOOTH GLEN, J.:
Motions numbered 004, 005, 006 and 007 of Index
No. 29966/82 on the Part 20 calendar for April 24, 1990
are consolidated for disposition.
Procedurally, this case was first before me pursuant
to an Article 78 petition challenging the grading of twelve
questions on the promotional exam for the position of fire
Department Lieutenant given October 31, 1981. (“Exam
No. 0511"). The report of the Referee was confirmed, and
a special eligible list was promulgated, after order entered
August 5, 1988. All of the petitioners were appointed to
the position of Lieutenant from the revised list. Those
petitioners now seek modification of the August 5, 1988
order to provide for retroactive back pay and seniority
benefits. (Motion 004). The remaining motions seck
intervention by various parties and support the request for
modification of the August Sth order. (Motions 005, 006
and 007).
Respondents argue that petitioners’ requested
modifications are barred by Civil Service Law § 61 which
grants the Fire Department, and other public agencies,
discretion in appointing or promoting candidates to positions
from an “eligible” list established by a competitive
examination.! Thus, according to respondents, Civil Service
! Civil Service Law $61 reads, in relevant part, as follows:
*...§61. Appointment and Promotion
1. Appointment or promotion from eligible lists.
20a Appenpix C
[Decision of The Supreme Court State of New York]
Law §61 rebuts any claim of entitlement to the title of
Lieutenant”, and retroactive pay and seniority cannot be
awarded to petitioners. Respondents cite a series of cases
in which the courts have consistently refused to mandate an
individual’s appointment from a list, with concomitant
benefits, on the basis that to do so would encroach on the
power of the appointing officials. See, Schenectady v. State
Division of Human Rights, 37 NY2d 421 (1975); Burger v.
Walsh, 291 NY 220 (1943); Delicati v. Schechter, 3 AD2d
19 (1956); cf. Mena v. D'Ambrose, 58 AD2d 514 (ist Dept
1977), mod. on other grounds, 44 NY2d 428 (1978).
Conceding the general validity of this proposition,
however, petitioners argue its inapplicability here, distinguish
the cases cited for the general proposition,” and point to
Appointment or promotion from an eligible list
to a position in the competitive class shall be
made by the selection of one of the three
persons certified by the appropriate civil service
commission as standing highest on such eligible
list who are willing to accept such appointment
or promotion ... (Civil Service Law, §61(1)).
2 The issue of “entitlement” becomes particularly important in
federal constitutional due process analysis. See Drogan v. Ward,
675 F Supp. 832 (S.D. N.Y. 1987) as discussed and distinguished
in Matter of Deas v. Levitt, 73 NY2d 525 (1989) cert. den. 110 S.
Ct. 324 (1989), "Entitlement" or a Finding of a "property right"
for purposes of Matthews v. Eldridge, 424 US 319 (1976) is,
however, entirely different than what is necessary for a "make
whole” remedy once a particular petitioner or plaintiff has moved
past the hypothetical “entitlement” to the realty of reinstatement
or, promotion. See, ¢.g. Cottongim v. Onondaga Sheriff's
Department, 71 NY2d 623 (1988) (reinstatement) McKernan v.
City of New York Civil Service Commission, 121 AD2d 350 (\st
Dept. 1986) lv. den. 69 NY2d 607 (1987). (promotion)
3 In Burger v. Walsh, supra, the plaintiffs were candidated for the
,
AprenDIx C 2la
[Decision of The Supreme Court State of New York]
several cases more nearly on point which compel the relief
they seek. See, e.g., Abrams v. Bronstein, 33 NY2d 488
(1974), Cottongim v. County of Onondaga Sheniff’s
Department, supra, McKernan v. City of New York Civil
Service Commission, supra. In each of these cases,
retroactive relief was granted in order to make the
petitioner or petitioners "whole."
Where the appointing authority's “discretionary
power” is not undermined in the case - either because the
petitioner seeks reinstatement after a discriminatory
termination, Cottongim, supra, or the appointing authority
has already exercised its discretion by appointing or
promoting, e.g., Abrams, supra, McKernan, supra, - the
appropriate remedy is one which put the employee or
employees in the position which s/he or they would have
been in but for the unlawful (Cottongim) or erroneous
(Abrams) or illegal (McKernan) acts of the authority.
Fire Department who claimed they had been improperly "passed
over" for appointment and sought retroactive appointment. The
Court of Appeals denied their application holding that to do so
".. . would in effect the deprive the Commissioner of the power
of selection which is implicit in the authority granted him as an
appointing officer. . ." 291 NY2d at p 223 (citations omitted).
There was no indication in that case that all applicants who
passed were appointed. In City of Schenectady v. State Division of
Human Rights, supra, the court held that the Commissioner of
Human Rights could not compel the City to offer the
complainant the next available position as police sergeant. In
that case it was also clear that discretion was regularly employed
in such appointments. In Mena v. D'Ambrose, supra, involving
the New York City Transit Police Department, prior use of the
"one in three” discretionary power of appointment was not only
understood as the practice of the Department, but was also
actually incorporated in the stipulation agreed to by all parties
but the chairman of the Transit Authority. Mena, supra, 44
NY2d at 432.
I iiiitaiaiiaaialie
22a Appenpbix C
[Decision of The Supreme Court State of New York]
Both Abrams and McKeman, are factually similar to
the situation in this case. In both cases, the “one in three"
rule of Civil Service Law § 61 was irrelevant to awarding
back pay and retroactive seniority because the petitioners
had already been appointed. Thus the court found that
" . the Civil Service Law § 61] justification misses the
point because the petitioners are not asserting a right to be
appointed but a right to equal benefits upon appointment.”
Abrams, supra, at 493, Footnote 6. In McKernan, as well,
by the time the issue of retroactivity reached the Appellate
Division, the petitioners had already been promoted from a
makeup list.4
Given the fact that the appointments had already
occurred, the two issues before the Appellate Division were
retroactive seniority and back pay. The test was, as in
other cases, what would make these already promoted
employees, who had been delayed in their promotion
because of the mishandling of a test by the Department,
"whole." As to retroactive seniority, the Department
conceded "that such seniority should be granted to
petitioner, or any similarly eligible candidate who is actually
4 this case involved the same promotional examination 4s
presented here, but in a slightly different context. The petitioner
in McKernan was a firefighter who was unable to take the exam
because he was on line of duty leave at the time. He brought a
proceeding to compel a prompt makeup exam, which was granted
by the trial court. McKernan v. City of New York Civil Service
Commission, 127 Misc 2d 946 (S. Ct. New York Co. 1985). The
trial court set an outside date for holding such an exam, but
when the case was argued in the Appellate Division, the question
of the court’s power to do so became moot, as the exam had
already occurred. McKernan had successfully taken the exam and
been promoted, as is and has been the practice of the
Department. See discussion infra.
Aprenpix C 23a
[Decision of The Supreme Court State of New York]
promoted from the make up examination list." The only
question was whether such seniority should run from the
date of the exam, or the date on which the employee
would have been promoted had he taken the original exam.
The Department argued for the latter, the petitioners
conceded, and the Appellate Division so held.
As to retroactive back pay, the court held that it,
like retroactive seniority, should "equitably be granted” only
from the date the petitioner would have been appointed
had he taken the original examination. In language directly
applicable to the instant case, the court wrote:
While appellants contend that petitioner has no
legal right to any back pay, it appears that such
an award is the appropriate remedy to make
petitioner whole and rectify the consequences of
delay in administering the makeup examination.
The back pay does not constitute an award of
monetary damages, but is, rather, incidental to the
primary relief sought by petitioner, in that it
restores him to the position in which he would
have been had a proper makeup examination
been given so that he could timely have been
promoted, if eligible. (CPLR 7806; See, e.g.
Anderson v. County of Suffolk, 97 AD2d 448)
McKernan, supra at p. 352.
Here, as in Abrams and McKernan, the petitioners
have already been promoted from the revised list. Thus
they seek nothing which would in any way impinge upon
the discretionary authority of the Department, which has
already been exercised in their favor. In their reading and
reliance upon various cases cited by them, the respondents
confuse rights and remedies. The petitioners here do not
seek the right to be promoted, which the courts have found
is not a "right" given Civil Service Law §61. They have
been promoted, so that right, opportunity, or guarantee of
24a Appenpix C
[Decision of The Supreme Court State of New York]
fair consideration is no longer at issue.
The only remaining question is what remedy will
make them whole. The respondents, having remedied the
original error, that is the mis-scoring of the promotional
exam, and the petitioners having been promoted in
accordance with whatever discretionary authority the
Department might or could exercise,
the petitioners can
and should be made whole by being given retroactive
seniority to the date on which they would have been
promoted had the exam initially been correctly scored, and
back pay as well.
| Because the petitioners here have actually been
promoted, it is mot necessary to consider their other
arguments, but one in particular deserves note. Affidavits
submitted with their papers included one from John J.
O’Rourke, former Chief of the New York City Fire
Department, whose career spanned a thirty-three year
period from 1953 to 1986. Former Chief O’Rourke
attested, from personal knowledge, to the fact that from
1953 to date the Fire Commissioner has never invoked the
"one in three” rule on promotions to the rank of
Lieutenant, Captain, Battalion Chief and Deputy Chief. He
also stated his belief that, as a matter of practical reality,
petitioners here would certainly have been promoted in
strict numerical order had their examinations been originally
> See discussion infra.
6 Although the respondents somewhat inexplicably argue that this
calculation is impossible, it is precisely the calculation they
performed in McKernan, and thus it is clear that they know
precisely how to do it. The procedure is also set forth in
Abrams at Footnote 2, p. 491.
AppENDIx C 25a
[Decision of The Supreme Court State of New York]
correctly graded by the respondents on dates that were
easily ascertainable. Petitioners also submitted articles from
the Civil Service newspaper, the Chief/Leader, concerning
the McKernan case in which the Assistant Chief to the
Law Department, Appeals Division was quoted as saying:
. it has always been the practice and in fact
the law requires, that when an answer on an
exam was changed because of Acosta litigation we
were required to rewrite all the papers. It has
been the practice in these cases to grant
retroactive seniority to all the parties involved.
The respondents thereafter submitted the affidavit of
Madelyn Oliva, Assistant Commissioner for Personnel of the
Fire Department, which set forth several instances in which
persons on eligible lists had not automatically been
promoted or "selected." Respondents argued that Ms.
Oliva’s affidavit demonstrated that in fact the “one in three
rule” had been invoked in the past, and that the petiticners
here were not automatically assured promotion based on
their passing the exam.
In a sur-reply affidavit submitted by the petitioners,
the circumstances of each of the cases set forth in Ms.
Oliva’s affidavit were explained. None actually involved
strict invocation of the "one in three rule.” Rather, in all
the cases, because of the particular applicant’s physical or
other incapacity at the time of the promotional selection,
the applicant was "passed over" in accordance’ with
department procedures, and subsequently considered when
capable of taking the promotion. In each of those instances
the applicant was ultimately promoted.
This careful explanation by petitioners demonstrates
not only that the “one in three rule” has never been used
26a Appenpix C
[Decision of The Supreme Court State of New York]
to deny promotion, but reaffirms the Department's
commitment to automatic promotion, based on position on
the list or seniority, so long as the applicant is physically
and otherwise capable of accepting the position, as the
petitioners here clearly are.
Thus, had this case come to me prior to the actual
promotion of the petitioners (and intervenors, as discussed
infra), the same result would have occurred. Since
petitioners have convincingly demonstrated that the
discretion which cases like Schenectady v. State Division of
Human Rights, supra; Burger v. Walsh, supra, and Mena v.
D’Ambrose, supra, sought to protect was deliberately never
exercised as a matter of Fire Department policy, concerns
about Civil Service Law §61 need not prevent the relief
which they requested.
However, since whatever hypothetical possibility
might have existed at the time of my original order has
now been removed because of the actual promotions by the
Department, there can be no question that the petitioners
are entitled to the retroactive seniority and back pay which
they request, such seniority and back pay to be computed
for each petitioner (and intervenor) from the date on which
s/he would have been promoted off the original list had the
test been properly graded.
MOTION OF INTERVENORS
In Motions numbered 006 and 007 various
firefighters who took the same promotional exam as the
petitioners in Andriola seek leave to intervene pursuant to
CPLR § 1013, to amend the caption of the action to
AppEeNnDix C 27a
[Decision of The Supreme Court State of New York]
include their names, and for relief identical to that sought
by the Andriola petitioners. Generally, where a common
issue of law or fact is present a proposed party will be
granted leave to intervene where it will not unduly delay
the action or proceeding, Norstar Apts. Inc. v. Town of Clay,
112 AD2d 750 (4th Dept. 1985) and the proposed party’s
action or proceeding is not otherwise time-barred.
Millington v. Southeastem Elevator Co., 22 NY2d 498
(1968). I note that the parties have consented to the
intervention of Mr. Abbott (Mot. 007). Therefore, I grant
him leave to intervene on that basis.
As a preliminary issue, the respondents oppose the
proposed intervenors’ Motion (006) on the grounds that it
is time-barred. Respondents argue that the action
challenged in the underlying Andriola proceeding, issuance
of the answer key to Exam No. 0511, became final and
binding on August 4, 1982 or at the very least when the
proposed intervenors were promoted from the special list
and thus the four month statute of limitations set forth in
CPLR §217 has long since expired. Although it is true
that the intervenors may not challenge the answer key or
the special promotion list at this late date, this is not the
basis on which they are entitled to seek intervention.
All of the proposed intervenors, although not
petitioners in the original Andriola action, had their exams
regraded and were placed on the special eligible list for the
title of Lieutenant, F.D. as a result of their regrading. In
addition, like the Andriola petitioners, all of the proposed
intervenors were subsequently promoted to the rank of
lieutenant as a result of their regrading and their placement
on the special eligible list. The relief which they seek, like
28a Aprenbix C
[Decision of The Supreme Court State of New York)
the Andriola petitioners, would do no more than make
them "whole" because of the Department's error in grading
the original exam.
This is almost the precise situation which occurred
in Abrams, supra, where the Court of Appeals held that it
would be a denial of equal protection to permit such relief
for persons participating in the original litigation (who, in
that case, received some relief as a result of a stipulation)
but deny it to those whose exams were also incorrectly
graded but who were not petitioners. The court found, as a
matter of both State and Federal Equal Protection, that the
benefits granted to those participating in the litigation must
also be granted to others whose lack of benefits similarly
resulted from faulty grading of the promotional exam.
Abrams, supra, at 495.
Respondents argue, alternatively, that if the
proposed intervenors’ claim is based on the Abrams equal
protection theory, the claim is not yet ripe. Their argument
is based on the view that first the Andriola petitioners
would have to prevail on their motion to amend my 1988
order, and thereafter the proposed intervenors would have
to request the same relief from Respondents. Only in the
event that the proposed intervenors’ requests were to be
denied would their Abrams claim be ripe for review.
The proposed intervenors concede that their claim is
an Abrams claim which is contingent upon the claims of
Andriola petitioners and does not become cognizable unless
and until the Andriola petitioners prevail on their motion.
They argue persuasively, however, that it would be in the
interests of judicial economy and would cause no prejudice
to any party to dispose of all of these related claims
Appenpix C 29a
[Decision of The Supreme Court State of New York]
together in this Article 78 proceeding. Therefore I grant
the proposed intervenor’s motion to intervene orly to the
extent of permitting them to raise the Abrams Equal
Protection claim. Since I have held in favor of the Andriola
petitioners in this decision, the same result must apply here,
and accordingly Motions 006 and 007 are granted.
Therefore I hold that the intervenors are entitled to the
same relief the Androla petitioners have here been
awarded.
PROPOSED PETITIONER/RETIREES
Motion No. 005 presents a more complicated issue.
This motion was brought on behalf of four now retired
firefighters, Joseph Lunz, Joseph Maraglino, Raymond
Negrycz and Robert J. O’Hara. All four were original
petitioners in the Andriola action, but all retirees prior to
June 19, 1989, the date on which the revised promotional
list was promulgated. All four received scores, after the
regrading, which would have entitled them to be placed on
the list assuming they passed the oral examination scheduled
by the Department in the Spring of 1989 after the
regrading occurred.’
7 It appears that promotion depends not only on a passing grade
on the written examination, but also on passing a subsequent
oral examination. Since the Andriola petitioners and the
intervenors did not originally receive passing grades on the
written examination, they did not take the oral examination
which followed. Consequently, as a result of my 1988 decision,
after rescoring the exam, a new oral examination was scheduled.
Although it is not clear from these papers, it appears that
everyone who took that examination passed it. Certainly that is
true for all the Andriola petitioners, and the intervenors, all of
30a AppENDIx C
[Decision of The Supreme Court State of New York]
In the original affidavit in support of retroactive
seniority and back pay for the four retirees, their attorney
stated that only one, Maraglino was notified of the oral
examination. According to that affidavit, he took the oral
examination and passed it. However, the retiree movants
claimed that O'Hara, Negrycz and Lunz were not notified
of the examination, did not take it, and so did not pass,
thus making them ineligible for promotion.
In answering papers, the Department furnished
copies of letters sent to the three movants who claim not
to have been notified of the exam. Those letters clearly
notified them of the exam and of what was necessary in
order to take it. In a reply affidavit, the attorney for the
three concedes that they received the notification, and
indeed that they actually took the exams, but that the
Department refused to grade them and informed the three
"that they would not be considered for promotion because
they were already retired.”
These four retiree/movants thus stand in a different
position than the other Andriola petitioners and_ the
intervenors, and also stand in different positions among
themselves. None have actually already been promoted, as
is the case with the other Andriola petitioners and the
intervenors. Thus the first portion of my holding does not
apply. However, as to Maraglino, who took and passed the
oral examination, was found ‘to have passed, and was added
whom- were, aS previously noted, subsequently promoted to
Lieutenant. The attorney's affidavit submitted in support of
Motion 005 states that "on information and belief, all Firemen
[sic] who took the oral examination passed the oral examination.
This was true whether referring to the oral examination given in
the spring of 1989 or the oral examination that was given
following respondents’ mistaken grading in August 1982."
APPENDIX C 31a
[Decision of The Supreme Court State of New York]
to the list, the second ground for my holding, that is the
Department’s policy of automatic promotion and non-
application of the "one in three” rule requires that the
relief granted to the other petitioners be granted to him as
well. That is to say, Maraglino should be entitled to
retroactive seniority and back pay as of the date on which
he would have been promoted had the original exam been
correctly graded.8
With regard to retirees Lunz, Negrycz and O’Hara,
respondents have submitted no further information. Thus it
is not possible to determine whether, as they claim, they
took the oral exams which were not graded, whether they
passed the exams, or whether this information, like that
submitted in their first affidavit, is also incorrect.
Accordingly, based on the unrebutted statements that
the oral exams were taken, but not graded, the appropriate
remedy here appears to be an order requifing the
department to grade those exams and certify whether the
three retirees did or did not pass. If they are certified to
have passed, they are in the same position as Maraglino
and the same relief which he has been granted should
ae | recognize in making this determination that | have accepted
petitioners’ argument that, but for one instance, the "one in
three" rule has never been applied by the department to deny
promotion to someone otherwise capable of receiving the
promotion at that time. The Oliva affidavit suggest that there
may be other cases, although they are unnamed, unspecified, and
presumably less strong than those to which she specifically refers.
In the event that the papers submitted here do not accurately
reflect the situation in the Department, as attested to both by
Chief O’Rourke’s affidavit, and the various quotes from
department officials reported in the Chief/Leader stories,
respondents may move for reargument as to my decision on
Maraglino.
32a Appenpix C
[Decision of The Supreme Court State of New York]
apply. If the oral exams are graded and the three retirees
do not pass, the Department may so find, and refuse to
certify them, leaving the retirees with whatever rights they
may have to challenge that determination. Finally, if the
department cannot now grade those oral examinations, it
must promptly schedule a make-up examination so that
Lunz, Negrycz and O'Hara can be put in the position which
they would have been had the original exam been correctly
graded.
Settle order in accordance with my decision.
Dated: June 21, 1991
te
KRISTIN BOOTH GLEN
J.S.C.
33a
Appendix D- Order And Judgment of
Kristin Booth Glen, J.. Supreme Court
of The State of New York, Appellate
Division, First Department, Entered
October 31, 1991 [Pages 33a - 37a]
LAS20
Supreme Court of the State of New
York held in and for the County of
New York at LAS Part 26 of the
County Courthouse in the City of
New York on the 18th day of
September, 1991
PRESENT:
Hon. Kristin Booth Glen
Justice
LAWRENCE ANDRIOLA, JAMES A. BURKE,
THOMAS J. CAPANELLI, JOHN CIORCIARI,
LAWRENCE E. CONNORS, JOAQUIM P. DASILVA,
ALFRED J. PAUVEL, ANTHONY L. FRAVOLA,
JOSEPH J. KENNINGTON, ROBERT W. LINHART,
JOSEPH LUNZ, JOSEPH MARAGLINO, PATRICK
H. MC DERMOTT, JAMES R. MC ENROE, THOMAS
M. MC MAHON, PETER T. MORGAN, JOHN F.
MULVEY, RAYMOND NEGRYCZ, JAMES W. Index No.
O'BRIEN, ROBERT J. O'HARA, RUSSELL L. - 29966/82
OLSON, JOHN F. PETERSON, MICHAEL JOHN
PUZZIFERRI, THOMAS F. REGAN, RICHARD J.
SMITH and JOSEPH SOLAZZO,
Petitioners,
ORDER/
For a Judgment Pursuant to Article 78 of the JUDGMENT
Civil Practice Law & Rules,
-against-
JUAN U. ORTIZ, as City Personal Commissioner,
Department of Personnel, and as Chairman of the
Civil Service Commission of the City of New York,
and JOSEPH E. SPINNATO, as Fire Commissioner
of the City of New York,
Respondents,
34a AppeNDIx D
[Order And Judgment of Supreme Court State of New York]
-and-
WILLIAM BARRETT, JOSEPH BACCARI, JAMES
O'DONNELL, on behalf of themselves and other
successful candidates on Promotion List 5608
(Lieutenant, NYC Fire Department) as members
of Lieutenant Eligible Association 5608,
Intervenors-Respondents.
Petitioners, LAWRENCE ANDRIOLA,
THOMAS J. CAPANELLI, LAWRENCE E. CONNORS,
JOAQUIM P. DA SILVA, ANTHONY L. FRAVOLA,
JOSEPH J. KENNINGTON, PATRICK H. MC
DERMOTT, JAMES R. MC ENROE, PETER R.
MORGAN, JOHN F. MULVEY, RUSSELL L. OLSON,
JOHN F. PETERSON, MICHAEL JOHN PUZZIFERRI,
THOMAS R. REGAN, and RICHARD J. SMITH
(hereinafter "ANDRIOLA Petitioners"), by their former
attorney, STEPHEN M. BEHAR, having duly moved this
Court by Notice of Motion dated October 12, 1989, for an
Order modifying the prior Order and Judgment of this
Court and granting each of the movants the back pay due
and owing to them from the date that they should have
been promoted through the dated of their actual promotion
and granting each of the movants full seniority benefits
nunc pro tunc to the date that they should have been
promoted (hereinafter "“ANDRIOLA Petitioner’s Motion to
Modify”). The undersigned counsel for petitioners was
substituted for Attorney Behar by consent of the parties,
and
Proposed _ Petitioners-Intervenors, © MICHAEL
ANTINORO, PETER BIANCHINI, ROBERT BRADLEY,
ApPEeNnpDIx D 35a
[Order And Judgment of Supreme Court State of New York]
ALLEN DEL GANDIO, EDWARD ELLISON, HERBERT
FISCHER, WILLIAM GRONEMAN, JOHN GULOTTA,
ADOLF HUTTER, JOHN KLEEHAAS, JAMES KLESS,
DOUGLAS KRUGER, CORNELIUS LEHANE,
CHARLES McCARTHY, DONALD McCULLOUGH,
DENIS NEIGAN, LEROY O’NEIL, ERIC REHBEIN,
JOHN REILLY, DENNIS SCANLON, FRANCIS
SHANAGAN, JOHN STACK, PATRICK WELSH, SAM
WHITE and CHARLES’ WILLIAMS (hereinafter
"ANTINORO Petitioners"), by their attorneys, COLLERAN,
O'HARA & MILLS having duly moved this court by Notice
of Motion for an Order pursuant to CPLR §1013
permitting the intervention of the ANTINORO Petitioners,
and directing the amendment- of the caption in_ this
proceeding accordingly (hereinafter "ANTINORO
Petitioner’s Motion to Intervene") and
Proposed Petitioner-Intervenor, RICHARD J.
ABBOTT, JR. (hereinafter "ABBOTT"), by his attorneys,
COLLERAN, O'HARA & MILLS, having duly moved this
Court by Notice of Motion for an Order pursuant to CPLR
$1013 permitting ABBOTT’s intervention as a Petitioner-
Intervenor, and directing the amendment of the caption in
this proceeding accordingly (hereinafter "ABBOTT’s Motion
to Intervene"), and said Motions having regularly come on
to be heard;
NOW upon reading and filing the Notice of
Motion dated October 12, 1989, the affirmation of Stephen
M. Behar, dated October 12, 1989, the affidavit of John J.
O'Rourke, sworn to February 23, 1990, the Reply Affidavit
of John F. Milis, sworn to March 1, 1990, the Affidavit of
John J. O’Rourke sworn to March 23, 1990, the Sur-Reply
36a Aprenpix D
{Order And Judgment of Supreme Court State of New York]
Affidavit of John F. Mills, sworn to March 23, 1990, in
support of ANDRIOLA’s Motion to Modify, and the
Affirmation of David L. Lock, dated December 22, 1989
and the affidavit of Madelyn Oliva, sworn to March 15,
1990, in opposition to ANDRIOLA’s Motion to Modify,
and
Upon reading and filing the Notice of Motion,
the affidavit of John F. Mills, sworn to February 15, 1990
and the Reply Affidavit of John F. Mills, sworn to April
20, 1990, in support of ANTINORO’s Motion to Intervene,
and the affirmation of David L. Lock, dated April 16, 1990,
in opposition to ANTINORO’s Motion to Intervene, and
Upon reading and filing the Notice of Motion,
the affidavit of John F. Mills, sworn to March 9, 1990, the
Reply Affidavit of John F. Mills, sworn to April 20, 1990,
- in support of ABBOTT’s Motion to Intevene, and the
Affirmation of David L. Lock, dated April 18, 1990, in
opposition to ABBOTT’s Motion to Intervene, and after
due deliberation having been held thereon, and upon the
decision of this Court dated June 21, 1991;
NOW, upon motion of Colleran, O'Hara & Mills,
attorneys for the ANDRIOLA petitioners, the ANTINORO
petitioners and ABBOTT, it is hereby
ORDERED, that the application of the
ANTINORO petitioners to intervene is granted and that
the caption of this case be amended accordingly, and it is
further
ORDERED that petitioner, ABBOTT's
application to intervene is granted and that the caption of
this case be amended accordingly; and it is further
ORDERED AND ADJUDGED, that
Appenpix D 37a
[Order And Judgment of Supreme Court State of New York]
ANDRIOLA’s Motion to Modify is granted in its entirety
and the ANDRIOLA petitioners, the ANTINORO
petitioners, and ABBOTT are awarded retroactive back pay
from the date that they should have been promoted
through the date of their actual promotion, and full
seniority and pay longevity benefits munc’ pro tunc to the
date that they would have been promoted had the exam
initially been correctly scored.
38a
Appendix E - Decision of Kristin Booth
Glen, J. Supreme Court of The State of
New York, Appellate Division, First Depart-
ment, Dated May 4, 1988 [Pages 38a - 40a)
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 20
LAWRENCE ANDRIOLA, JAMES A BURKE,
THOMAS J. CAMPANELLI, JOHN CIORCIARI,
LAWRENCE E. CONNORS, JOAQUIM P. DASILVA,
ALFRED J. FAUVELL, ANTHONY L. FRAVOLA,
JOSEPH J. KENNINGTON, ROBERT W. LINHART,
JOSEPH LUNZ, JOSEPH MARAGLINO, PATRICK
H. MC DERMOTT, JAMES R. MC ENROE, THOMAS
M. MC MAHON, PETER T. MORGAN, JOHN F.
MULVEY, RAYMOND NEGRYCZ, JAMES W. Index No.
O'BRIEN, ROBERT J. O'HARA, RUSSELL L. 29966/82
OLSON, JOHN F. PETERSON, MICHAEL JOHN
PUZZIEFERRI, THOMAS F. REGAN, RICHARD J.
SMITH and JOSEPH SOLAZZO,
Petitioners,
For a Judgment Pursuant to Article 78 of the
Civil Practice Law & Rules,
-against-
JUAN U. ORTIZ, as City Personnel Commissioner
Department of Personnel, and as Chairman of the
Civil Service Commission of the City of new York,
and JOSEPH E. SPINNATO, as Fire Commissioner
of the City of New York,
Respondents,
KRISTIN BOOTH GLEN, J.:
This Article 78 proceeding was brought to
challenge the New York City Fire Department and New
York City Department of Personnel in their grading of 12
APPENDIX E 39a
[Decision of Supreme Court State of New York]
questions on the Promotion Examination for the position of
Fire Department Lieutenant given on October 31, 1981. A
hearing before Special Referee Diamond was held, pursuant
to an order of reference, dated October 14, 1986. Referee
Diamond has issued an extensive and detailed 33 page
report which found that petitioner’s answers to questions
51, 75 and 80 were as good as the answers credited by
respondents and that their answers to questions 3, 13, 14,
21, 30, 57, 97 and 99 were not and that respondent’s had
withdrawn question 71.
Petitioners move to confirm in part the findings
as to questions 51, 75, 80 and 71 and to disaffirm the other
findings. Respondents cross-move to confirm the report in
its entirety. Intervenor-respondents, successful candidates on
a subsequent test for Fire Department Lieutenant, seek to
have the life of their promotional list extended for a period
equivalent to any extension of the eligible list arising out of
the October 31, 1981 examination.
Upon review of the transcript of the proceedings
and exhibits submitted in evidence before the referee the
court finds that the report of the referee is amply
supported by the record and that the recommendations of
the referee concerning the regrading of the examination be
adopted.
Accordingly, the respondent’s cross-motion to
confirm the report in its entirety in granted and the motion
by petitioners to modify is denied. Respondents are
directed to regrade all examinations taken on October 31,
1981 to reflect the revised grading and to compile a special
eligible list within 30 days of service of the judgment to be
settled hereon. Further, where it is demonstrated that
40a APPENDIX E
[Decision of Supreme Court State of New York)
errors have rendered and eligible list in derogation of the
merit and fitness standards of the New York Constitution
(Art. V, §6) and that candidates have been aggrieved by the
errors, the statutory durational period for appointment from
the list for the aggrieved petitioners does not begin to run
until the list is corrected (Matter of Mena v. D’Ambrose, 44
N.Y.2d 428, 406 N.Y.S.2d 22, (1978); Cataldo v. Ortiz, New
York County Sup. Ct., Index No. 15819/83, Stecher, J., aff'd
133 AD.2d 1022, 519 N.Y.S.2d 913 [ist Dep't 1987], app.
den. 70 N.Y.2d 616, __N.Y.S.2d___ [1988]. Petitioners are
thus entitled to the continuation of the special eligible list
for a period of time consistent with Civil Service Law §56
commencing at the time when the list is corrected (Id.).
Additionally, the eligible list for the intervenor-respondents
who took and passed exam 5608 shall also be extended to
compensate them for the number of displacements resulting
from petitioners being appointed from the special eligible
list during the life of the eligible list promulgated from
exam 5608.
Settle judgment in accordance with the foregoing.
ENTER: May 4, 1988
s/
KRISTIN BOOTH GLENN
J.S.C.
Appendix F - Order And Judgment of Kristin
Booth Glen, J.. Supreme Court of The State
of New York, Appellate Division, First Depart-
ment, Entered August 5, 1988 [Pages 41a - 44a]
At an IAS Part 20 of the Supreme
Court of the State of New York,
County of New York, held at the
Courthouse, 60 Centre Street, New
York, on the 11th day of July 1988.
LAWRENCE ANDRIOLA, JAMES A. BURKE,
THOMAS J. CAMPANELLI, JOHN CIORCIARI,
LAWRENCE E. CONNORS, JOAQUIM P. DASILVA,
ALFRED J. FAUVELL, ANTHONY L. FRAVOLA,
JOSEPH J. KENNINGTON, ROBERT W. LINHART,
JOSEPH LUNZ, JOSEPH MARAGLINO, PATRICK
H. MC DERMOTT, JAMES R. MC ENROE, THOMAS
M. MC MAHON, PETER T. MORGAN, JOHN F.
MULVEY, RAYMOND NEGRYCZ, JAMES W. Index No.
O'BRIEN, ROBERT J. O'HARA, RUSSELL L._ 29966/82
OLSON, JOHN F. PETERSON, MICHAEL JOHN
PUZZIFERRI, THOMAS F. REGAN, RICHARD J.
SMITH and JOSEPH SOLAZZO, Petiti ;
-against- ORDERED and
JUDGMENT
JUAN U. ORTIZ, as City Personnel Commissioner,
Department of Personnel, and as Chairman of the
Civil Service Commission of the City of New York,
and JOSEPH E. SPINNATO, as Fire Commissioner
of the City of New York,
Petitioners are twenty six (26) New York City Firemen.
By Petition dated November 19, 1982, Petitioners
challenged decisions, made by the New York City Fire
Department and the New York City Department of personnel 3
in the grading of twelve (12) questions on the promotional
42a APPENDIX F
[Order And Judgment of Supreme Court State of New York]
examination for the position of Fire Department Lieutenant
given October 31, 1981.
The Petitioners contended that Respondents erred in
not designating certain answer choices as correct answers to
these twelve (12) questions, and further erred in failing to
delete some examination questions which had no correct
answer.
Respondents written answer disputed the petition on
every issue. By an order of reference dated October 14,
1986 the issues were referred to Special Referee Donald
Diamond. On the 29th day of July, 1987, Referee Diamond
made and filed his report.
Thereafter, by notice of motion dated November 20,
1987 and the annexed affirmation of their attorney, Ronald
Podolsky, intervenor-respondents moved to intervene in this
matter. On January 5, 1988 this Court granted intervenor-
respondents’ motion to intervene per the stipulation dated
December 31, 1987 between the intervenor-respondents and
Petitioners.
Petitioners then moved to confirm the Referee’s
findings as to questions 51, 75, 80 and 71 of the
promotional examination and to disaffirm the Referee’s
other findings. Respondents cross-moved to confirm the -
Referee’s report in its entirety. The intervenor-respondents
sought to have the life of their promotional list extended
for a period equivalent to any extension of the eligible list
arising from the October 31, 1981 examination.
Upon reading and filing Petitioners’ notice of motion
to confirm in part, and reject in part, the Referee’s report,
dated September 25, 1987 and the affidavit of Petitioner's
attorney, Stephen M. Behar, Esq. Sworn to Sept. 30, 1987
eT
APPENDIX F 43a
[Order And Judgment of Supreme Court State of New York]
in support of Petitioners’ motion with proof of due service
thereof upon the attorney for Respondents; and upon
reading and filing the Respondents’ Notice of Cross Motion
dated October 30, 1987 to confirm the recommendation of
the Referree’s report and the annexed affirmation of Grace
Goodman, Assistant Corporation Counsel dated Oct. 15,
1987, in support of Respondents’ cross motion, and due
deliberation having been had thereon;
On May 4, 1988 this Court rendered its written
decision on the aforementioned motions.
NOW, on motion of Stephen M. Behar, Esq.,
attorney for the Petitioners, and in accordance with this
Court’s decision of May 4, 1988 it is ORDERED that the
cross motion is granted and the report is confirmed, and it
is
ADJUDGED: That Petitioners have sustained the
burden of proof in establishing that answer choices (B) and
(D) are at least as good as the answer choice designated as
the only correct answer to Question No. 51; and it is
further
ADJUDGED: That Petitioners have sustained the
burden of proof in establishing that answer (B) is at least
as good as the answer choice designated as the only correct
answer to Question No. 75; and it is further
ADJUDGED: That Petitioners have sustained the
burden of proof in establishing that answer (A) is at least
as good as the answer choice designated as the only correct
answer to Question No. 80; and it is further
ADJUDGED: Question No. 71 was withdrawn from
the examination, on consent of Respondents; and it is
further
44a APPENDIX F
[Order And Judgment of Supreme Court State of New York]
ADJUDGED: That Petitioners have failed to
establish that their proposed answers were as good as the
credited answers to Questions No. 3, 13, 14, 21, 30, 57, 87
and 99; and it is further
ORDERED AND ADJUDGED: That Respondents
are directed to regrade all examinations taken on October
31, 1981, to reflect the revised grading in accordance with
the findings of this Court; and it is further
ORDERED AND ADJUDGED: That Respondents
compile a special eligible list within thirty (30) days of
service of the judgment; and it is further
ORDERED AND ADJUDGED: That the statutory
durational period for appointment from the special eligible
list for the aggrieved Petitioners does not begin to run until
the list is corrected, and Petitioners are entitled to the
continuation of the special eligible list for a period of time
consistent with Civil Service Law §56 commencing at the
time when the list is corrected; and it is further
ORDERED AND ADJUDGED: That the eligible
list for the intervenor Respondents who took and passed
exam 5608 shall also be extended to compensate them for
the number of displacements resulting from Petitioners
being appointed from the special eligible list during the life
of the eligible list promulgated for exam 5608.
ENTER:
s/
J.S.C.
s/
Clerk
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