Petition for Writ of Certiorari — Hasenstab v. McGuire

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

all 27 ] 5 3 9 Bape m7, us. |

SUPREME COURT OF THE

UNITED STATES OF AMERICA

TERM: OCTOBER, 1992

TERRY HASENSTAB

PETITIONER, ’

-AGAINST-

ROBERT J. McGUIRE AS POLICE COMMISSIONER

OF THE CITY OF NEW YORK, AND AS CHAIRMAN

OF THE BOARD OF TRUSTEES OF THE POLICE

PENSION FUND, ARTICLE TWO, THE BOARD OF

TRUSTEES OF THE POLICE PENSION FUND,

ARTICLE TWO, NEW YORK CITY POLICE

DEPARTMENT AND THE CITY OF NEW YORK

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE NEW YORK STATE COURT OF APPEALS

TERRY HASENSTAB

42 PECONIC DR. NO.

MASSAPEQUA, N.Y.

11758

516 795 3877

QUESTIONS PRESENTED FOR REVIEW:

1. Did New York State's high-court hold-

ing, Matter of Deas v. Levitt, 73 NY2d

525, violate petitioner's "Equal Protect-

ion" and "Due Process" rights--whereby,

similarly situated residents of New Jer-

sey, Texas and Ohio enjoy a more favor-

able [p]ostdeprivation State remedy,

pursuant to their high-court decisions

that are in conflict with Deas, supra?

2. Did the New York State courts err

when they failed to sustain petitioner's

contention, that the New York City

Police Department violated his State/

Federal "Equal Protection" rights, when

they placed him before the Department's

Medical Board, prevented his promotion

and forced him to retire--in conflict

with treatment they accorded others?

3. Does New York's high-court holding,

in Deas, supra, which is in conflict with

the high-court decisions of New Jersey,

Texas and Ohio--including that of the

United States Court of Appeals;,*sixth Cir-

Cuit, violate Federally-protected "Due

Process," by defeating timely judicial

challenges of administrative deter-

minations (with the expiration of the

eligible list at issue), [r]Jipen the con-

Siderations governing the review of this

Court, pursuant to Part 111, Rule 10,

thereof?

4. Did the New York City Police Depart-

ment's failure to notify the petitioner,

as required by the "notice provision" of

New York Civil Service Law Section 50 (4),

that they had disqualified him from pro-

motion to sergeant, which defeated, there-

by, his right to notice and a hearing,

violate his right to procedural "Due

(A2)

Process," as provided for in, and protected

by, the Fourteenth Amendment to the United

States Constitution?

9. Did the petitioner have a protected

property interest, created by the State, in

being fairly considered for promotion, with

required notice of his disqualification,

therefrom (New York Civil Sermice Law Sect-

ion 50, 4);

’

and the concomitant right to be

heard, as provided for in Sections 812 (C),

813 (A)(3)-(8), (8B) 5 of the New York City

Charter--which were defeated by government

action?

6. Did New York's courts err when they

failed to give effect to petitioner's riaqht

to remedy violations of "Equal Protec

crf

and "Due Process" under Title 42, Uni

re)

fae)

States Code, Section 1983, as a

therein?

7. Does New York's high-court holding, in

Deas v. Levitt, supra, which provides remedy

(appointment from an expired civil service

list) for those who challenge--only--their

position on an eligible list--in a judicial

proceeding--and prevail, but denys equal

treatment to others who challenge their dis-

qualification, violate State/Federal "Equal

Protection;" in addition to procedural "Due

Process," by failing to provide an adequate

State postdeprivation remedy?

8. Did the Appellate Division majority, of

the New York County Supreme Court, and the

New York State Court of Appeals err, when

they held that the rescored eligible list,

on which the petitioner's name appeared, was

not promulgated until September 9, 1983; and,

therefor, the "notice provision,” of New York

Civil Service Law Section 50 (4) was not

applicable to him--although the [a]ntic-

ipation of disqualification ripens this stat-

(A4)

ute, and that event took place before Sept-

ember 9, 1983, and prior to August 29, 1983?

9. Did the Appellate Division majority, of

the New York County Supreme Court, and the

New York State Court of Appeals err, when

they determined that the petitioner was dis-

tinguishable from the other "seriously in-

jured" Police Department members, who were

promoted to competitive positions, and allow-

ed to remain, therein--because they had not

been examined and approved by the Medical

Board, for accident disability; although it

was action taken on the part of the Police

Department, that placed the petitioner be-

fore that Board?

10 Did the Police Department's failure to

provide the petitioner with their reasons

for his disqualification (in accordance

with the "notice provision" of New York Civil

Service Law Section 50, 4), violate his right

to procedural "Due Process," by precluding

judicial review, thereof; in addition to their

failure to disclose to him, that they had, in

fact, promoted others, all of whom were in-

jured more seriously than he, to competitive

positions--and allowed them to remain with the

Department?

11. Did the petitioner have a protected prop-

erty interest in being fairly considered, to

continue his employment--subsequent to his in-

jury (in the line-of-duty); and the concom-

itant right to be heard, to protect that in-

terest--especially since others, similarly

Situated, were treated differently?

12. Does the substantial number of individ-

vals that are disqualified each year (through-

out New York State), from civil service ap-

pointments, and who are, either precluded

from judicial challenge, thereto, or defeat-

ed, therein, by Deas v. Levitt 73 NY2d 525

(A6)

(pursuant to the expiration of his/her elig-

ible list) warrant the protection of the sub-

Stantive due process clause, as well as pro-

cedural; and, does the New York City Civil

Service Commission's uncomplimentary view,

of the manner in which 132 police officer

eligibles were disqualified by the New York

City Police Department, in January of 1992

(List 7009) exacerbate this question?

13. Did the Police Department's failure to

notify the petitioner, that he could have

opposed the Medical Board's decision (pur-

Suant to statute, New York City Administrat-

ive Code Section 13-206(d)), which prevented

his right to a hearing--to protect against

the taking of his job--violate the due pro-

cess Clauses, and other law; in view of the

facts that they treated others, similarly sit-

uated, differently, in addition to failing to

advise petitioner of these events?

(A7)

14. Did the petitioner have ea protected prop-

erty interest in, es well as a statutory

right to, oppose the Medical Board's decision,

to defend against the taking of his job?

15. Did the United States District Court err,

when it held that the petitioner had not

raised, or pleaded any Federal Constitutional

claims--in his State court petition and first

motion to reargue; although he advanced, there-

in, that others who were similarly situated to

him were promoted, and allowed to remain with

the PD, in addition to his not having been

notified that he had passed Exam 8539--until

efter he had retired--which could not have

constituted reasonable notice of petitioner's

disqualification, and precluded his right to

be heard? And, therefore, was that court's

dismissal, based upon res judicata, in error?

16. Did the petitioner suffer a new injury.

which occurred from a separate transaction--

pursuant to his due process claim--when the

PD advised him that, they had reconsidered

(A8)

their determination, and decision was not to

promote him, retroactively, citing Deas v.

Levitt, 73 NY2d 525 as controlling precedent;

and when the Supreme Court sccndandi: accord-

ingly, his petition--because it defeated pet-

itioner's opportunity to be heard (petitioner

advanced claims, pursuantly, in his "Affirm-

ation" of July 11, 1990, RA at 337-344, and

his Appellate Division "Reply" brief at

Pages 12-13)? And, which was in addition to

petitioner's previous claims of due process

violations.

17. Did the application of Deas, on the

part of the PD and the court, as in Question

16, supra, constitute a new equal protection

injury to the petitioner--from a separate

transaction--in that Deas denied him a post-

deprivation remedy which is enjoyed by resid-

ents of New Jersey, Ohio and Texas; pursuant

to the expiration of his civil service elig-

ible list (petitioner advanced claims, pur-

suantly, in his "Motions" of October 8, 1990,

RA at 377-380, 398-399; and November 16,

(AS)

1990, RA eat 420-422)? And, which was in ad-

dition to petitioner's previous claims of

equal protection violations.

18. Did the PO's failure to notify petitioner

of the events in which they promoted others,

who were similarly situated to him (and, that

they allowed them to remain with the Depart-

ment), in addition to their not having ad-

vised him that, he could have--pursuant to

statutes--opposed both their determination of

his disability, and disqualification from pro-

motion, vitiate any challenge by respondents

to the timeliness of when the petitioner

raised these issues? And, since the PD abro-

gated their responsibility (as the initiator

of petitioner's termination and disqualificat-

ion from promotion) to advise petitioner of

these issues--should the time that he dis-

covered these events, and disregarded stat-

utes, be focused upon in an issue of timeli-

ness?

(A10)

19. Did the PD's discriminatory treatment

of the petitioner, pursuant to his disability,

violate ‘the Federal "Americans With Disabil-

ities Act," which was enacted on July 26,

1992--and while this matter was still sub

judice (before the New York State Court of

Appeals, for reconsideration of its decision,

6S requested by petitioner)?

(A1i1)

TABLE OF CONTENTS

Page

Questions presented for review........ A1-A11

Jurisdictional Statement.............. 1-2

ee a, 3-10

FEDERAL QUESTIONS

(In accordance with subparagraph .1(h)

~ “of Rule 14); where raised--and how

courts passed upon them.

EQUAL PROTECTION

New York County Supreme Court......... 10-14

Ee ee eee ee 14-15

New York State Court of Appeals....... 15-16

DUE PROCESS

New York County Supreme Court......... 16-19

oo Ee ee ee er 19-22

(Appellate Oiviedon | 20-22

New York State Court of Appeals....... 22-23

ARGUMENT

(Preliminary statement... . ...ccccrccee 24

a i rr er ere 24-46

| eer ere rr ee ee reer eer 46-47

Ue PU 6c eS be eee hee bee eae ee 48-63

Be SUA oo 6a ae 4 6 9 a a eee 63-64

CONTENTS

Page

F@RAGE Gi ee ace et we 64-65

(Pursuant to Section 1983 of Title 42,

UMNICOG SEOLOS Gees. s+s--s.-..2....... 64

Table of Authorities (four documents)

Appendix, pursuant to Rule 14(h), (three

documents).

Appendix, pursuant to Rules 14(f) and

14(k), (four documents).

TABLE OF AUTHORITIES

Anderson Nat. Bk. v. Luckett, 321

U.8s SOR cccvedaen Shae eee ee eee eee One

Board of Regents v. Roth, 408 U.S. 564.60

Canarelli v. New York State Dept. of

Civil Service (1974), 44 A.D. 2d 645..

Cassidy v. Municipal Civ. Serv. Comm.

ae Ws Vee Dees 4k ee eae eee ee

Charles v. Baesler (6th Cir., 1990)

920 F 26 2OGR sce cece sncseos ten eebesas

City of New York v. City Civil Serv.

Com'n (1988), 141 Misc.2d 276.........

eee eeweeoees

Deas v. Levitt (1989), 73 N.Y.2d 525...

Dower v. Poston (1973), 76 Misc.2d

FER 6 0.6 KARE AREERE SNORE ee ee

Drogan v. Ward, 675 F. Supp. 832......

. 35

AUTHORITIES

Page

Duckett v. City of Houston (1973),

See Bee. Ses 6S ck wee Shae ee eee 44-45

Se ee eee Te eo ee 56

Ferrine v. Babou (1980), 75 A.D.2d

Ro eae aa nk a te a ci na ae ee 50

Firemen's & Policemen's Civil Serv.

Com'n v. Kennedy (1974) 514 S.wW.2d

BPs ee 886 8 ee Geo eh ee 45

Fourteenth Amendment to the United

PEGGOE TOABSECUCAGN ica acc cee ee ea 2

Seek a a ae at ee esate, 12-13

Pe aha Sav Ae eae ay ee 17-20

Se ee re ere rn 22-23

ed ee aa te ne era a 38

ahd Grea a eae ae 40

aS ere eee 43

ERM Pe rer ey Phe Para 47-48

tee aha eee ieee aaa 58

Soe eee eee ee eee 64

Grifin v. Carey (1982), 547 F. Supp.

ip SE TE Oe TT OCS TT ee OTE ee 50

Tee eee ee ee ETT CT eT ee Cree 62

Harrah Independent School District v.

POrtin, 4460 U.S. BE FOF “8O nc vc sc vowvwees 57

Hart v. Bronstein (1974), 43 A.D.2d

2, SRR Brae ae ey ee a ae ae eae Nd a Pe ate A 50

Kinney v. Ohio State Dept. of Admin.

sary. (7304), S60 8.2.20 20G7 «icc vc esse 35

Levoci v. Brown (1991) NYLJ at 22,

PS Se ee a i ee a eee eet 20

111

AUTHORITIES

Malone v. Fender (1979), 80 N.J 129.

Marranca v. Harbo (1964), 41 N.J. 569.

New Jersey Administrative Code, Title

GA (4Ai 85.4) 6 0 vet tee te eee eee ee

New York City Administrative Code,

Section 13-20 (6). ise see eee ee eee

a ©? & 9 2. 2 @ 62 ee 2 eS eS 2S Se

eo @ + 2. & 2 4+ €@.- 9, 6-8 8 8 42.5 8 2 2 2.8

New York City Charter, Sections 812

(C), S23(A) (3) -(8) , (BS. sc ec c teens

New York Civil Practice Law & Rules

V4 ih od rrr yh

FOOSE) 2c ce ve es oes hee ee eee

New York Civil Service Law, Section

SU (6)... ce cece ent tneee eee eee eee

¢eeetev ¢ 6 00? © © * © © & O-8 © 22 2 2S. 8 2.)

ee eseeoeeCcoeec¢te# 8 6 © @ 6 ©) @ 616-8 4 2.9 6 8 2 2 |

eoseese+7oeosoe Coe 6 OER OP 2 eS 2 8 8 ee Se Fe ee

$oeen6ee0ebse & 642d © 6 @ 8 6 O6- CD 2 8S CS T Se 2 eS ee

oe ose eee eo 42 CR BRE DS 2 SS 2 SOS OS Ce ee eS eee

oC RCH CBO Oe eS CO Oe 2 Se OS eee See

eoveeaerteebeonresete*rtetee#srecese 68 © 8 2 2 2.6.8 8 eo 24

Page

.42-43

i1iii

AUTHORITIES

Page

New York Civil Service Law, Section

EE EE ~

OS 45

CaO A Bde eye yd © 6 6 os 6. aos. 6 waa 6 wg 51-52

TRG SS hl hie SoG as 5x eb bs eee wee ec ne 61

Ramsey v. Bd. of Ed., Whitley County

Kentucky (1988)(6th Cir.), 844 F.2d

ee oe ec ce ccc ¥

Regents of the University of

Michigan v. Ewing, 474 U.S. 214....... 97

Rule 4.3.2 of the New York City

Pereonnel Director.................... 37-38

Section 3.6 of the Rules & Regulat-

lons of the Department of Civil

Meeweee CONYCRA).. 2... we te ee ccn. 61

Shirokey v. Marth (iye¢c), 585 WN.E.2¢

ee Oe as oh sce ko eck ccc ccc. 43-44

Sullivan v. Brown (6th Cir., 1976)

Te kk a onc avon ween, 58

Title 42, United States Code,

ee A3

ee Be Ee 12

Sg es ae 15

PE teeta Cue eats bc be 64 17

RS SE EA ee ee 20

SS ee 64

Yick Wo v. Hopkins (1886) 118 U.S.

bs bw bh es ek cess cceneny 38

Zinermon v. Burch (1990), 494 U.S.

ee Be as kb kk eee n eck 63

JURISDICTIONAL STATEMENT

Petitioner invokes the jurisdiction of

this Court pursuant to his contentions that,

his Federally-protected rights, to both

"Equal Protection” and "Due Process," were

violated--by actions undertaken by the New

York City Police Department--while he was an

employee, thereof. And further that, although

petitioner raised these issues, in the courts

of New York State--they failed to provide ad-

equate remedy.

The judgment sought to be reviewed was

entered in the New York State Court of Appeals

on June 11, 1992--which affirmed, without

memorandum, the decision of the Appellate

Division, New York County Supreme Court, en-

tered on December 12, 1991; a reargument mot-

ion, having been made to the Court of Appeals,

was denied--with entry, thereof, on September

ee, 1932.

The statutory provision, conferring up-

on this Court the jurisdiction to review the

(1)

judgment of the New York State Court of

Appeals, is the Fourteenth Amendment tc the

Constitution of the United States of America.

CONSTITUTIONAL PROVISIONS

STATUTES

ORDINANCES

REGULATIONS

1. New York City Administrative Code Sec-

tion 13-206(d).

’ Fourteenth Amemdment to the United

States Constitution, Due Process and

Equal Protection Clauses.

3. New York Civil Service Law Section 50 (4).

4. Rule 4.3.2 of the New York City Personnel

Director.

9. United States Code, Section 1983 of

Title 42.

The verbatim quotation of the pertinent

text, pursuant to item (2), supra, is pre-

sented on Page 40 of the petition; and item

(3), at Page 49. The pertinent text of items

(1), (4) and (5) are set forth in the Appen-

dix, hereto, in accordance with subparagraph

.1(f) of the Court's Rule 14.

(2)

STATEMENT OF FACTS

Petitioner, a retired New York City

Police Officer, was seriously injured in the

line-of-duty on May 5, 1982. Subsequent to

his injury, petitioner was directed--by his

Police Surgeon (Police Surgeons hold the rank

of "Inspector" in the Police Department; here-

inafter, the "PD")--to file for disability re-

tirement (RA at 179, 208). In November of

1978, petitioner took Exam 853S9--for promot-

ion to sergeant; and he was notified, there-

after, that he head feaked (RA at 18). Pur-

Ssuant to a successful judicial challenge, and

an order of the court, Exam 8539 was rescored

(RA at 19-28); and petitioner's name appeared

on the additional list of passers (RA at 65-

82 reflects the incorporation of the additional

passers into the original list--all of the

Original passers had already been promoted,

therefrom). Although he had passed Exam 8539,

pursuant to its rescoring, petitioner wés

(3)

[n]ot notified, until after his forced retire-

ment, of that event! Pursuant to his forced

application, for disability retirement, pet-

itioner was examined, and approved by, the PD

Medical Board on June 7, 1983 (RA at 61); al-

though the same Board had examined the pet-

1tioner on February 8, 1983, determined that

he was not disabled, and disapproved his re-

tirement application (RA at 58). On August 17,

1983, those who had passed Exam 8539, pursuant

to its rescoring, were notified to attend a

basic management course, commencing on August

22, 1983 (RA at 83). Petitioner was excluded

from attending the course, Supra, and was [njot

notified--as required by New York Civil Service

Law Section 50 (4)--that he had been disqual-

ified from promotion to sergeant; although the

anticipation of disqualification, ripens the

"notice provision" of the Statute, supra. It

should be noted that all of the candidates who

passed Exam 8539 were promoted in regular order

eccording to the listings; and that the Police

Commissioner did not exercise his discretion,

pursuant to New York Civil Service Law Section

61 (option to appoint one of three persons

Standing highest on an eligible list), to pre-

Clude the petitioner's promotion. On August

23, 1983, the Pension Board of Trustees met

and approved petitioner's application for

disability retirement--which he had been dir-

ected to file for! The petitioner was direct-

ed to report to the PD Pension Section, for

processing, on September 1, 1983. Unaware

that he had passed rescored Exam 8539, and

that he had been disqualified from promotion,

to sergeant, petitioner waived over 105 days

of accrued leave, and retired effective

August 31, 1983--upon the advice of process-

ing personnel, that by doing so, he would de-

crease his tax liability for that year. On

September 12, 1983, all of the candidates who

were ordered to report to the management course

were promoted, in regular order, according to

the listings--the Police Commissioner did not

exercise his discretion, pursuant to Section

61 of the Civil Service Law, supra, with re-

spect to any eligible on List 8539; this has

remained undisputed, since the onset of this

action. On September 15, 1983, petitiner re-

ceived notice that he had passed Exam 8539 (RA

st 29). It should be noted that the respond-

ents have consistently advanced, to the State

courts, that their only reason for preventing

the petitioner's promotion, was his medical

condition; and further that the petitioner had

an [u]nblemished service record, he had always

received superior performance ratings and was

awarded twenty-five medals for bravery and out-

WwW

Standing police work--from the Police Commi

loner. Although the PD had promoted a sub-

Stantial number of other officers, to compet-

W”

itive positions--under the very circumstanc

for which they advanced (to the State

re)

i €a)

was the reason that they prevented the pet-

1tioner's promotion (all were injured at

least, if not more serious than was the pet-

1tioner)--they failed to advance the facts

of these events; and rather, "intentionally,"

withheld that information--in [v]Jiolation of

the disclosure mandate, pursuant to Article

7804 (e) of the New York Civil Practice Law

and Rules. It was after the facts and cir-

cumstances, of these events, supra, were hint-

ed to the petitioner, that he instituted a

judicial proceeding--in January of 1984--chai-

lenging the PD's determination. Petitioner's

Original motion (RA at 11-17, 98-99) and his

first motion seeking renewal (RA at 108-113)

were denied--due to the petitioner's inabil-

ity (at that time) to obtain, and furnish the

court with, documentation that supported his

claims; that other PD members, of a "like"

Classification, were promoted to competitive

positions, "in addition to being allowed to

remain with the PD," under the precise cir-

cumstances for which the petitioner's pro-

motion was prevented, and he was forced to

retire. Petitioner, subsequently, obtained

the documentation that supported his claims,

and filed a second motion to renew (RA at 142-

150, 180-181, 196-207). In @ memorandum opin-

ion (October 28, 1987, RA at 259-270) the mot-

10n court remanded to the PD--directing that

they reconsider their determination (not to

promote the petitioner), pursuant to the

court's finding of arbitrary and unlawful con-

duct, in their treatment of the petitioner;

demonstrated by the new evidence submitted.

That court noted, in addition, the PD's fail-

ure to notify the petitioner of his disqual-

ification--as required by New York Civil Ser-

vice Law Section 50, 4 (RA at 268)--which pre-

cluded his right to be heard. Respondents re-

quested permission of the motion court--to

appeal its order and judgment; that motion

was denied on February 9, 1989 (RA at 281).

Respondents never pursued their option to

seek Appellate review of the motion court's

order and judgment, as provided for in Section

9701 (C) of the New York Civil Practice Law

and Rules. In response to a "Demand For Com-

pliance," with the court's order (RA at 292-

293)--the PD notified petitioner of their de-

(8)

cision not to promote him (RA at 296); which

was based, solely, upon the New York State

Court of Appeals' decision, Deas v. Levitt,

73 NY2d 525, because the list on which pet-

itioner sought promotion had expired (while

this matter was before the motion court).

Petitioner returned to the motion court

arguing that, pursuant to its memorandum opin-

ion, the PD was not free to exercise discret-

ion, in their reconsideration; and therefore,

although remanded, its decision constituted

[fJ)inal judgment (RA at 282-283, "Order To

Show Cause;" 284-290, "Motion For Contempt;" \

331-350, "Affirmation In Support Of Contempt");

that this matter had become final against re-

spondents, when they failed to seek Appellate

review of the motion court's order--when that

court denied their request for permission to

appeal; that the cloak of res judicata pre-

cluded the application of Deas, supra, to this

matter, because it was no longer sub judice,

when that matter was finally decided. Based

upon the Deas decision, the motion court dis-

(9)

missed the petition (RA at 361-364). After

several reargument motions (RA at 365-399,

412-436, 443-456) were denied (RA at 440-

442), petitioner appealed to the Appellate

Division of the New York County Supreme

Court. That court affirmed with a three to

two majority. Pursuant to a two Justice dis-

sent, petitioner appealed, as of right, to

the New York State Court of Appeals; which

affirmed on June 11, 1992. Petitioner's mot-

lon to reargue was denied on September 22,

L99¢ .

FEDERAL QUESTIONS

"Statement in accordance* with subpara-

graph .1(h) of Rule 14 (where raised, method

or manner, and how courts passed upon them).

: "EQUAL PROTECTION”

NEW YORK COUNTY SUPREME COURT

First raised in this (IAS) motion court

(RA at 110-111, November 21, 1984--"Affirm-

ation In Support Of Motion To Renew/Reargue) .

(10)

The petitioner advanced, in his moving papers,

supra, that other PD members, who were injured

at least, if not more serious than he, were

promoted--to both "competitive" and "non com-

petitive” positions--within the Department;

but was, however, at that time, unable to fur-

nish the court with documentation that support-

ed his claims; and although the respondents

knew that the petitioner's claims, supra, were

entirely accurate--they "intentionally" [w]Jith-

held, from both the petitioner and the court,

notice of these events, in violation of the

disclosure mandate, pursuant to Article 7804

(e) of the New York Civil Practice Law and

Rules (RA at 130-136, respondents’ "Affirm-

ation In Opposition To Motion For Reargument

And/Or Renewal"). The motion court dis-

tinguished the petitioner, from the other PD

members named in his renewal moving papers,

at that time, and denied reargument/renewal

(RA at 139-141).

Subsequent to the court's denial of his

motion, supra, and prior to his second motion

(11)

to renew, petitioner filed (upon the advice

of his attorney) an action in the United

States District Court, Southern District,

pursuant to the provisions of 42 U.S.C.,

Sections 1983 and 1988 and the Fourteenth

Amendment to the Constitution of the United

States--for violation of due process; that

court dismissed the action, based upon res

judicata (RA at 246-258).

Subsequent to the filing of the federal

action, supra, and prior to the decision of

that court, the petitioner was able to obtain,

through clandestine efforts, documentation

that supported the information that was hint-

ed to him (RA at 152-178), and filed a second

motion seeking renewal (RA at 142-181, Sept-

ember 23, 1986, 196-219, "Affirmation In Sup-

port,” February 25, 1987). The contention

that petitioner's equal protection rights

had been violated, was advanced to the court,

in his moving papers, supra (RA at 206-207.

By notice of a letter to the court, dated

August 20, 1987 (RA at 218-219) petitioner

included a claim of violation of federally-

protected due process--in addition to that of

the state, which had been previously advanced

to that court. That court "remanded" to the

PD, directing that they reconsider their de-

termination, not to promote the petitioner--

upon its finding of arbitrary treatment, and

unlawful conduct, in failing to notify the pet-

itioner--as required--ocf his disqualification

(RA at 262-271). Although the motion court

articulated, in the memorandum opinion, there-

of, a finding of disparity in the PD's treat-

ment of the petitioner (RA at 262-271)--that

court failed to express a specific declaration,

that his equal protection rights had been vio-

lated.

The petitioner reiterated his claim of

violation of equal protection, in his support

papers of a "Contempt Motion" (RA at 340, 344).

On August 23, 1990, the motion court dismissed

both the contempt motion, and the Article 78

petition (RA at 361-364); the court did not

express, therein, that it had considered the

(13)

petitioner's claims of equal protection vio-

lations.

Petitioner reargued the court's decision,

supra, and again raised his contention of vio-

lation of equal protection (RA at 377-380, 398-

399; October 8, 1990; 414, 420-422; "Support

Affirmation," November 16, 1990) In a decis-

ion dated January 22, 1991, the motion court

denied reargument (RA at 440-442)--and noted,

therein, that it did not believe petitioner

suffered any "cognizable" claim, based on the

equal protection clauses (RA at 442).

Petitioner reargued the court's decision,

Supra, and, once again, raised his contention

of violation of equal protection (RA at 452-

456; February 11, 1991). Decision of that

court, although not a part of the record,

was to deny reargument; the court did not ex-

press that it had considered the merits of

petitioner's equal protection claims, therein.

APELLATE DIVISION

Petitioner advanced his contention that

the PD violated his equal protection rights

(14)

in Petitioner/Appellant's Brief at P.7-23,

P.67 (wherein he sought relief pursuant to

Section 1983 of Title 42, United States Code);

which was served on July 2, 1991. The major-

ity of that court distinguished the petitioner

from the other PD members--because, although

they were disabled, they had not been examined

by the Medical Board, prior to their respect-

ive promotions; without giving effect to the

fact that, it was action undertaken by the PD

that placed petitioner before the Medical

Board--although the PD failed to apply the

same treatment to the other injured members

(P .Btbo) Appellate Division memorandum).

NEW YORK STATE COURT OF APPEALS

Petitioner advanced his contention that

the PD violated his equal protection rights

in his "Jurisdictional Statement” at P.5-7

(served on January 29, 1992). Petitioner ad-

vanced his contention, supra, in his "Argument

In Support Of Appellant's Position/Pursuant To

The Court's Rule 500.4" at P.5-6, 11-12, 18

(February 17, 1992); and also in petitioner's

(15)

"Reply Comments" of March 9, 1992 at P.1-6,

P.ad. This court affirmed, for the reasons

Stated in the Appellate memorandum--without

comment, pursuant to petitioner's equal pro-

tection claims.

— "DUE PROCESS"

NEW YORK COUNTY SUPREME COURT

First raised in the (IAS) motion court

(RA at 15, January 12, 1984, "Verified Pet-

ition). Petitioner advanced, in the petition,

supra, that the respondents failed to notify

him that he had passed Exam 8539. Ina "Re-

ply Affirmation," dated May 8, 1984, petiticn-

er, again, reiterated that the respondents

did not notify him, of his having passed Exam

8539, until after his retirement (RA at 98-99).

On June 27, 1984, the motion court dismissed

the petition (RA at 101-105); the court noted

(RA at 104) that the respondents' failure to

notify petitioner that he had passed the re-

rated examination, before his retirement, con-

stituted the Police Commissioner's refusal to

promote him.

Subsequent to the court's denial of his

motion, supra, and prior to his second motion

to renew, petitioner filed (upon the advice

of his attorney) an action in the United

States District Court, Southern District,

pursuant to the provisions of 42 U.S.C.,

Sections 1983 and 1988, and the Fourteenth

Amendment to the Constitution of the United

States --for violation of due process; that

court dismissed the action, based upon res

judicata (RA at 246-258).

Pursuant to an "Affirmation In Support Of

Motion To Renew" (September 23, 1986) petition-

er advised the court (RA at 149) that, had he

been advised by the PD Pension Section, that

he was on the sergeant's eligible list--when

he was being processed out of the PD--he would

not have waived his accrued leave; and would

have retired on, or about, January 15, 1984;

and, therefore, he would have been a member of

the PD, when the others who had passed the re-

scored exam were promoted on September 12, 1983.

(17)

Pursuant to an "Affirmation In Support

Of Motion To Renew" (February 25, 1987, RA at

196-217) petitioner advised the court, again,

of his failure to receive notice of his dis-

qualification, and an opportunity to be heard;

as required by New York Civil Service Law Sect-

ion 50, 4 (RA at 199; by notice of a letter

to the court, dated August 20, 1987, RA at

218-219, petitioner included a claim of vio-

lation of federally-protected due process--in

addition to that of the state). That court re-

manded to the PD--and noted in its memorandum

(RA at 268) petitioner's allegations that he

was denied notice of, and an opportunity to

Oppose, disqualification.

In an “Affirmation In Support Of Motion

For Contempt" (RA at 331-350) petitioner ad-

vanced to the court that he had been denied

both state and federal due process (RA at 337-

344). The motion court dismissed both the

contempt motion and the Article 78 petition--

without comment of the petitioner's due pro-

cess claims (RA 361-364).

(18)

Petitioner filed a "Motion To Reargue"

(October 8, 1990, RA at 365-399) and brought

to the attention of the court (RA at 395) that,

it had noted, in the memorandum opinion, there-

of (RA at 268), that petitioner was denied not-

ice of, and an opportunity to oppose, disqual-

ification. Decision of the motion court (RA

at 440-442) was to deny reargument, without com-

ment of petitioner's contention, supra. |

Petitioner filed an additional "Motion

To Reargue” (February 11, 1991, RA at 443-456)

and, again, brought to the attention of the

coOurt--that he was denied notice of, and an

Opportunity to oppose, disqualificaion (RA

at 452), and that his constitutional rights

had been violated (RA at 455). Decision of

that court, although not a part of the record,

was to deny reargument--without comment of the

petitioner's contentions, supra.

APPELLATE DIVISION

Petitioner advanced his contention that

the PD violated his due process rights, and

that the Deas decision precluded adequate

(19)

nee ee ee

state remedy (due process) to persons of his

classification in Petitioner/Appellant's

Brief at P.57-64, and P.67--wherein he re-

quested relief pursuant to Section 1983 of

Title 42. United States Code; which was served

on July 2, 1991. Petitioner reiterated his

claims of due process violations in his "Re-

oly Grief” et P.1i-i3s. By decision of that

court, entered on December 12, 1991, the maj-

Ority opinion held that, the "notice provision,

of New York Civil Service Law Section 50 (4)

did not apply to the petitioner's situation,

because the consolidated list (#8539, which

reflected the names of the additional passers,

pursuant to rescoring) was not "officially"

published until September 9, 1983; and which

was after petitioner's retirement(?@i2z21AdGe-

cision of thet court).

THE DISSENT

The minority held that the petitioner

had been denied "procedural" due process, Dy

not having received timely notice of his dis-

qualification,)PB2|- and that the PD failed

)

(20)

to follow statutory procedures, by neglecting

to give petitioner written notice of his dis-

Qualification, for medical reasons, pursuant

to New York Civil Service Law Section 50 (4)

1322-23 That court further held that, by fail-

ing to provide petitioner with notice of, and

the reasons for, his disqualification--the PD

deprived petitioner of the opportunity to

make effective use of his statutory right to

an administrative appeal, within the adjud-

icatory procedure established by Section 812

dissent specifically noted that:

"although the revised eligible

list was not promulgated and pet-

itioner was not notified that he

passed the rescored examination

until after the effective date of

petitioner's retirement, petition-

er's disqualification took place,

in effect, well before these dates,

when he was omitted from the group

which was notified to report for

the indoctrination course on Aug-

ust 22, 1983. That action on the

pert of the Department constituted

ade facto promulgation of the re-

vised eligible list and, as such,

violated the notice requirement of

Civil Service Law Section 50 (4).

In concluding that there is no

legal authority which requires

(21)

notification to an applicant that

he or she had been disqualified

prior to the promulgation of a new

eligible list and a list of those

who passed the rescored examination,

the majority essentially takes the

position that the Department need

not notify an applicant of disqual-

ification until after disqualificat-

ion takes place, Civil Service Law

section 50 (4) clearly provides

otherwise." (P.826-2G¢6)

Pursuant to a two Justice dissent, pet-

1tioner appealed, as of right, to the New York

State Court of Appeals.

NEW YORK STATE COURT OF APPEALS

Petitioner advanced his contention , that

the PD violated his due process rights in his

"Jurisdictional Statement" at r.f-8,. te18,

16-17, which was served upon the court on

January 29, 1992. Petitioner advanced his

contention, supra, in his "Argument In Sup-

port Of Appellant's Position/Pursuant To The

Court's Rule 500.4 at P.5, 8, 17-18, 20-23

(February 17, 1992); and also in his "Reply

Comments" of March 9, 1992 at Pi.4-7, 10, i2-

14. The petitioner advanced, in his "Reply

Comments" of March 9, 1992, supra, substant-

lal case law that supported his claim that,

(22)

in order to satisfy due process requirements,

persons disqualified must be given notice of

such events--and afforded an opportunity to

be heard (P.13-14). That court affirmed, for

the reasons stated in the Appellate memorand-

uUm--without comment, pursuant to petitioner's

due process claims.

By notice of a letter (pro se), dated

July 24, 1992, petitioner requested the court

to reconsider its decision; and reiterated,

therein, his claim of both equal protection

and due process violations. That court de-

nied reargument on September 22, 1992.

(23)

ARGUMENT

At first blush one might well inquire

why the PD refused to accord the petitioner

treatment, equal to that of the other

officers, who were injured at least, if not

more than he was. Although the petitioner

is at a loss--for an explanation of the PD's

actions, supra, he is compelled to make known

to this Court that neither a disciplinary re-

cord, nor a criminal investigation (at any

time) was the springboard for their deter-

mination. The petitioner was a model officer

(noted on his annual performance evaluation

in 1972, and again, by his commanding officer,

in 1980), and in nineteen years of service,

he was never the subject of disciplinary act-

ion--but was, however, awarded twenty-five

medals by the Police Commissioner. This has

remained undisputed, since the onset of this

action, by the respondents.

EQUAL PROTECTION

Petitioner's claim of equal protection

(24)

violations is based upon both the PD's dis-

parate treatment of him--and the State's fail-

ure tG provide an adequate remedy to address

grievances--such as petitioner's; whereby,

"Similarly situated” residents of New Jersey,

Ohio and Texas enjoy more favorable treatment,

pursuant to high-court holdings that are in

[c]onflict with the New York State Court of

Appeals' decision, Matter of Deas v. Levitt,

73 NY2d 525 (which pursuant to subparagraph .1

(6b) of Rule 10 of this Court, warrants con-

Sideration governing review on writ of cert-

1orari).

Bs THE PD

After the petitioner's forced retirement

from the PD (August 31, 1983), and subsequent

to the first notice he received (September 15,

1983), that he had passed Exam 8539 (RA at 29),

it was hinted to him that other PD members--

elso injured--were promoted to competitive

positions; in addition to being allowed to re-

main with the PD. Due to the petitioner's in-

(25)

ability to confirm that these events had taken

place (the PD withheld that they had), he

could not petition the court to order the sup-

porting records. As the result of diligence,

the petitioner discovered--through clandestine

efforts--that eight PD members, all of whom

were injured at least, if not more serious

than he was, were promoted, and allowed, sub-

sequent, thereto, to remain with the Depart-

ment. These events took place both before

and after petitioner's passover; four indiv-

idvuals received six civil service promotions

to the competitive ranks of sergeant, lieu-

tenant and captain, and four were promoted

to detective. McTigue (RA at 118, 153-160),

Buckley (RA at 211-215), Duffy (RA at 161-178,

209), Pascarella (RA at 127, 322), Pastorella

(RA at 127, 322) and Senft (RA at 127, 32

ine)

were identified, along with the supporti

»)

proof, to the motion court. The medical re-

cords of Buckley, and affidavits concerning

Simpson and Mamet, although outside of the

record, were handed-up to the Appellate Just-

ices at oral argument (respondents' Appellate

Division Brief et P.6, £.%.,; 29, 2.58.35 Fe=

spondents' letter submission, dated March 5,

1992, to the Court of Appeals at P.12, f.n.).

By notice of a letter, dated October 15, 1991,

respondent's counsel advanced her objection,

to the Appellate Division Justices, that pet-

itioner had handed-up the documents, supra,

during oral argument--even though he had just

obtained them. The events of these promotions,

along with the supporting procf, although out-

Side of the record, were advanced to the Court

of Appeals--in petitioner's letter submission

of February 17, 1992 (at P.12).

ISSUES

The Court of Appeals affirmed, pursuant

to the holdings of the Appellate Division maj-

ority thet:

a The September 9, 1983 publication of

the revised list--which reflected the con-

solidation of those who had passed, pursuant

to rescoring of the exam--constituted its

promulgation; which was nine days after the

(27)

petitioner's medical retirement became effect-

ive on August 31, 1983 (Appellate memorandum

at P Bi).

- The "notice provision" of New York Civ-

il Service Law Section 50 (4), pursuant to

disqualification of eligibles, did not apply

to the petitioner's situation--for the reason

stated in item 1., supra (Appellate memorand-

um at P. BIA).

3. The petitioner was distinguishable

from the other disabled officers, because

they were on "sick leave" when their promot-

ions took place--and had not been approved

by the Medical Board prior, thereto (App

late memorandum at P.BiA-15).

ARGUMENT

fe))

The only list at issue, 1n this m

ter, is the one which was delivered (pur-

sSuant to the rescoring of Exam 8539) to the

PD on July 20, 1983. This contention is

Supported by the fact that all of the indiv-

iduals, whose names appeared on the original

list, had already been promoted, therefrom--

when the list of additionel passers (200+),

pursuant to the rescoring was delivered to

the PD on July 20, 1983. And since the re-

scoring list is the only list at issue--it

wes when action had been undertaken by the POD,

on this list that constituted its promulgation

(Appellate Division minority,! B52cof memorand-

um); not when the consolidated list was pub-

lished on September 9, 1983--the purpose of

which was to reflect, by score placement, re-

troactive seniority [o]nly. The PD issued a

notification on August 17, 1983 (RA at 83-

87) directing the new passers to attend an

indoctrinetion course, commencing on August

22, 1983; the petitioner was omitted from the

group which was notified to attend the course.

Petitioner, and the Appellate Division dis-

senters, contend that, that action, on the

part of the PD constituted a de facto promul-

gation of the "revised" list, and, as such,

violated the notice requirement of New York

Civil Service Law Section 50 (4) (Appellete

(29)

Division memorandum at P .B2H20).This contention,

Supra, was advanced to the Court of Appeals in

petitioner's letter Submission of February 17,

1992 at P.14-17: and again, in his request to

the Court to reconsider its decision, dated

July 24, 1992 at P.£es, §,

"a In concluding that there 1s no legal

authority which requires notification to an

applicant, that he or she had been disqualified,

prior to the promulgation of a new eligible

list, and a list of those who passed the re-

scored examination, the Appellate majority,

essentially, took the position that the PD need

Not notify an applicant of disqualification un-

til after disqualification has taken place.

New York Civil Service Law Secticn 50 (4)

Clearly provides Otherwise (this point will be

addressed in petitioner's argument--contending

Gue process violations).

3. FIRST EQUAL PROTECTION VIOLATION

The Appellate majority held, and the Court

Of Appeals affirmed that, petitioner was dis-

tinguishable from the other "disabled" officers,

because they were on "sick leave," and had

not been approved by the Medical Boerd, prior

to their respective promotions (Appellate

memorandum at P.@\S)- The gravamen of this

particular issue, and to which the State

courts failed to give effect, is that it was

action undertaken by the PD--that placed the

petitioner before the Medical Board; his

Police Surgeon (who held the rank of "In-

spector” in the Department) ordered him to

file for disability retirement (RA at 179,

208)--and which gave rise to that event.

That action, on the part of the PD, whereby

they placed the petitioner before the Medical

Board--and forced him to retire--while others

from a similar classification were treated

"differently," and allowed to remain with the

Department, [vJiolated petitioner's equal

protection rights; which wes further "ripened,"

when he was disqualified from, and the others,

named, herein, were promoted to, competitive

positions. Furthermore, respondents brought

to the attention of the Court of Appeals that,

(31)

petitioner could have challenged, pursuant to

New York City Administrative Code Section 13-

206(d), the Medical Board's decision that he

was medically unfit (respondents' letter Sub-

mission of March 5, 1992, to the Court, at

P.10). That statute provides that "any mem-

ber, within thirty days after receipt of the

decision by the Medical Board" may request

that the Medical Board's cetermination be re-

viewed by a special medical board which shall

consist of one doctor of the medical board and

@ doctor selected and compensated by such mem-

ber. The petitioner was never advised, by

the PD, that he could have challenged the

Medical Board's cetermination, as provided for,

Supta@; and since it was action undertaken by

the PD that placed the petitioner before that

Doard--they were under an obligation to in-

form him of his right to oppose their determ-

1nation; which with proper notification, the

petitioner would have done--especially since

the Medical Board had conflicting findings;

on February 8, i983, the Medical Board de-

(32)

termined that the petitioner was not disabled,

and recommended that his retirement applicat-

ion (which the petitioner reminds the Court,

he did not file voluntarily) be disapproved

(RA at 58). That determination, by the Med-

ical Board, supra, was undertaken with the un-

refutable knowledge that, accordingly, petit-

ioner had to be restored to full police du-

ties; each of the three members of that board,

supra, examined the petitioner that day.

However, on June 7, 1983, just four months

later, and with no worsening of the petit-

ioner's medical condition, the seme members

of the Medical Board held that, the petitioner

had @ partial disability, and recommended

that he be retired (RA at 61). Petitioner

contends that the PD's failure to notify

him, that he could have opposed the Medical

Board's decision, was unlawful, and deprived

him of his right to be heard. Since the

PD promoted, to competitive ranks, other mem-

bers, who were injured at least, if not more |

than he was, and allowed them to remain with

(33)

the Department--serving in the ranks of ser-

geant, lieutenant and captain (demonstrated

in petitioner's letter submission, of February

17, 1992, to the Court of Appeals--at P.12,

20), the petitioner could have, additionally,

remained, and served in the ranks of police

officer and/or sergeant. Pursuant to the med-

ical conditions of the other injured members,

named, herein, who were promoted, and allowed,

in addition, thereto, to remain with the PD--

the PD's determination, that placed the pet-

itioner before the Medical Board, was [i]m-

properly founded; and he had a "vested" right,

therefore, to the review of that board's de-

cision. And the PD's failure to notify the

petitioner, that he was statutorily-entitled

to oppose the Medical Board's determination,

denied him the right to that review (raised

in petitioner's "Reply" letter submission of

March 9, 1992, to the Court of Appeals).

Essentially, the PD forced the petitioner

to resign, based upon their determination

that was improperly founded (taking into con-

(34)

sideration, the medical condition of the

other PD members who were allowed to remain,

therein), when they (his Police Surgeon)

directed him to file for disability retire-

ment (RA at 179, 208). And by failing to

Qive the petitioner, proper notice of his

right to oppose "their" Medical Board's de-

termination, the PD snatched, not only his

right to review, thereof--but his promotion

and job as well! That action, on the part of

the PD, whereby the petitioner was forced to

file for disability retirement, constituted

@ removal--not a resignation. In the Matter

of Kinney v. Ohio State Dept. Of Admin. Serv.,

469 N.E.2d 1007 (1984) the Ohio Court of

Appeals (that State's highest court) held

that:

"where an appointing authority

induces a resignation as the

only alternative to a removal

based upon unfounded charges of

misconduct, the resignation is

ineffective to deny the employee

his appeal to the State Person-

nel Board of Review. Under

those circumstances, there has

not been @ resignation but,

rather, a removal, the merits

of which the employee should be

(35)

permitted to contest (P. 1007)."

(Emphasis added.)

That court, supra, remanded to the lower

court, with instructions to reverse the decis-

ion of the administrative board, because the

appellant, therein, did not have the opport-

unity to introduce evidence--directed toward

establishing that the charges against him

were unfounded (id., at 1010).

Similarly, in this matter, the petition-

er was [c]ompelled to file for disability re-

tirement, based upon a determination that was

improperly founded. And, as the precise re-

sult of the PD's failure, to notify the pet-

itioner--that he could have opposed the Med-

ical Board's determination (and that they had

treated others, similarly situated, different-

ly), he was denied the opportunity to demon-

strate, to that board, that others, some of

whom were injured more seriously than he was,

were permitted (by the Department) to perform

the duties of both police officer and sergeant;

without having been placed before that board

(36)

(as demonstrated by the fact that Sergeant

Mary Buckley and Lieutenant Gerard P. Simpson

both served in the ranks of police officer

and sergeant, subsequent to their respective

injuries; P.12, petitioner's letter submission

(argument) of February 17, 1992, to the Court

The PI moted four seriously injured

members to six civil service positions, in

addition to four others--to, and within the

rank of detective. Due to the serious nature

of the injuries, that these other officers sus-

tained, the PD had to be aware of their med-

ical conditions, when these promotions took

place. And although the respondents repeat-

edly advanced, in their verified answers,

that New York Civil Service Law Section 50,

and Rule 4.3.2 of the City Personnel Director

prevented petitioner's promotion (RA at 3/7-

38, 133-134, 357), they failed to apply these

disqualifying statutes against the other in-

jured PD members--and effected their promot-

ions. These promotions, supra, did not take

(37)

place as the result of administrative care-

lessness, negligence or an accident--they

were "intentional." This contention is sup-

ported by the PD's having effected some of

these promotions, subsequent to the filing of

petitioner's judicial action--advancing, there-

in, that other officers, who were disabled and

on sick leave, were receiving promotions, in

contradiction to the reason that petitioner's

was prevented. Therefore, the FD's applicat-

10on of New York Civil Service Law Section 50

(4), and Rule 4.3 2 of the City Personnel Dir-

ector, to prevent the petitioner's promotion,

1n addition to forcing him to retire was in-

tentional invidious discrimination. The

Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution

prohibits, among other things, [d]iscrim-

inatory administration of a law neutral on

its face (Yick Wo v. Hopkins, 118 U.S. 356,

373-74, 6 S. Ct. 1064, 1072-73, 1886).

The petitioner contends that the PD vio-

lated his equal protection rights, initially,

(38)

when they placed him before the Medical Board,

by comparison to the other officers who, al-

though they were "similarly situated" to him,

were treated differently. Moreover, because

it was action undertaken by the PD, that

placed the petitioner before the Medical

Board, that action did not make him disting-

vishable from the other injured members--who

were treated differently. The gravamen of

this particular issue, supra, is that the pet-

itioner's medical condition persuéded his

Classification as "likened" to the other in-

jured officers--and a ministerial act, under-

taken by the PD (the directive to file for

disability retirement--which placed him be-

fore the board) did not distinguish him from

the others. Accordingly, the PD "further"

violated petitioner's equal protection rights,

when they prevented his promotion and forced

him to retire--although they treated other

injured officers differently.

i DEAS DENIES EQUAL PROTECTION

The New York State Court of Appeals de-

(39)

I ce

i ie

Cision of Deas y. Levitt, 73 NY2d 525 denies

residents equal protection, which is enjoyed

Dy "similarly situated" residents of New

Jersey, Ohio and Texas. The pertinent text

of the Fourteenth Amendment to the Constit-

Ution of the United States provides:

"Section 1. ...No State shall

make or enforce any law which

Shall abridge the Privileges or

imnunities 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."

(Emphasis supplied )

With the "expiration" of one's eligible

138t., Deas [d]efeats a judicial challenge to

an administrative determination--with but one

Narrow exception; even if that Challenge was

timely commenced, and during the life of the

s28¢., To obtain relief, pursuant to Deas,

one must commence a judicial proceeding, dur-

ing the life of his/her @eligible list, chal-

lenging the constitutionality (validity) of

that list; should the list at issue expire,

while the proceeding is sub judice, Deas

accords placement on a "Special eligible list,”

should the individual prevail on the merits

of his/her challenge, Paradoxically, Deas

accords a remedy to one who challenges the

constitutionality of an eligible list--should

that list expire, while the proceeding is sub

judice, but denies relief to one who challenges

the constitutionality, of an administrative de-

termination that preventec his/her promotion.

In the Matter of Charles v. Baesler, 910

F.2d 1349 (6th Cir., 1990) the petitioner,

therein, filed a 42 U.S.C. Section 1983 séction

almost two years after his eligible list had

expired--challenging the determination that

prevented his promotion. And although the

eligible list, on which the petitioner's name

appeared, had expired, substantially before he

commenced the proceeding--the district court

granted partial judgment; the petitioner

appealed the adverse portions of the judgment.

The government specifically argued, at appeal,

that their code did not create a right to pro-

motion from an expired promotion list. The

(41)

United States Court of Appeals, Sixth Circuit,

noted (id., at 1352) that the court below re-

jected that argument--and stated, further:

"In the absence of any discus-

sion of these state-law issues

by the Kentucky courts, we see

no cause to disturb the reason-

ed conclusions of the exper-

ienced Kentucky district judge."

(1d., at 1352, emphasis supplied. )

For reasons "other than" that the petit-

loner's eligible list had expired, that court,

Supra, reversed and vacated the judgment en-

tered below, and remanded, with instructions

to dismiss without prejudice to petitioner's

pursuit of state court remedy (id., at 1357).

In the Matter of Marranca v. Harbo, 41

N.J. 569, New Jersey's highest Court consider-

ed what was a fair reading of the statute

which dealt with the impact of litigation up-

on the life of the employment list, and held

that:

"The sense of the statute seems

clear enough: if there is a suit

‘with respect to the filling of

any position or employment from

such eligible list,' justice

should not be denied because the

list expired during the pendency

of the litigation (1964)."

(42)

(id., at 573, Emphasis supplied.)

See also Malone v. Fender, 80 N.J 129 (1979,

Supreme Court of New Jersey).

New Jersey Administrative Code title 4A

(4A:4-3.4), as amended November 6, 1989, pro-

vides for the revival of eligible lists.

In the Matter of Shirokey v. Marth, 585

N.E.2d 407 (Ohio, 1992), the petitioner/fire-

fighter filed an action--subsequent to the

expiration of his civil service eligible

list--pleading, inter alia, thet he had been

"improperly" passed over for promotion; that

his constitutional due process rights, pur-

suant to Section 1983, Title 42, U.S. Code,

had been violated. Although the petitioner,

therein, commenced the action subsequent to

the expiration of his eligible list--the

trial court granted partial judgment; and

the Court of Appeals affirmed (id., at 409).

The Ohio Supreme Court reversed, for reason

"other than" that, the petitioner's eligible

list had expired; that the state's judicial

review and administrative processes allowed

(43)

for a ful] Consideration of petitioner's

Claim (id., at 414).

In the Matter of Duckett v. City of

HOuston, 495 S.W.2d 883 (Supreme Court of

Texas, 1973), the petitioner/firefighter filed

an éctlon--subsequent to the expiration of his

€ligible list--seeking tO compel his Promotion

to assistant arson investigator. The trial

COurt granted summary judgment and, upon

appeal, the Court Of Appeals reversed and re-

manded. The petitioner appealed to the

Supreme Court--and although the action was

commenced, after his €ligible list hag ex-

pired, that State's highest Court reversed

the judgment of the Court of Appeals, and

effirmed that of the trial cOurt (id., at 887).

(Emphasis Supplied.) The respondents also ar-

gued that any rights Duckett may have had were

Subject to the Fire Chief's authority, pur-

suant to his option to appoint one of three

persons standing highest on the list--the

Court noted:

"...and the record here does not |

(44)

Si ih ct i a eit aceaaaamammman

establish that the Fire Chief

did not have valid reason for

rejecting Duckett's appoint-

ment. But, the Fire Chief did

not purport to invoke this

statutory procedure for reject-

ing Duckett as an otherwise

eligible person and in our view

Duckett did not have the burden

of showing that he would not

have been upheld had he done so."

(id., at 887, Emphasis supplied. )

Similarly, in petitioner's case, respondents

have raised that the Police Commissioner

could have prevented the petitioner's promot-

1on--pursuant to his discretion to appoint one

of three persons standing highest on the list

(New York Civil Service Law Section 61). As

in Duckett, supra, "could have," or "should

have” fells short of hitting the mark! More-

Over, the respondents have consistently ad-

vanced, to the state courts, that the Police

Commissioner prevented petitioner's promotion,

for reason of his medical condition.

In the Matter of Firemen's & Policemen's

Civil Serv. Com'n v. Kennedy, 514 S.W.2d 237

(Supreme Court of Texas, 1974), that State's

highest Court held that:

"Anyone who established his right

(45)

to the highest grade on the list

would have been entitled to first

consideration by the head of the

department even though the list

had expired while the case was

making its way through the courts

(id., at 240, Emphasis supplied. )

CONCLUSION

EQUAL PROTECTION

These State high Court decisions, includ-

ing that of the United States Court of Appeals,

Sixth Circuit, establish their scrutiny of due

process rights, and the protection, thereof.

Moreover, these high court holdings demonstrate

[c]onflict, with New York's high court holding

in Deas v. Levitt, 73 NY2d 525--pursuant to

federal questions of both due process and

equal protection; as New York's precludes,

that which is enjoyed by New Jersey, Ohio and

Texas residents. And petitioner respectfully

contends that these conflicts warrant the con-

sideration of review of this Court (Part 111

Rule 10, .1. (a), (b), thereof). The facts of

this matter, and the evidence presented to the

State courts--in support of petitioner's con-

tentions--warranted their finding of equal pro-

tection violations. This invidious discrim-

ination, on the part of the PD--in their

treatment of the petitioner--is, indeed, that

which the drafters of our Constitution's

Fourteenth Amemdment intentioned to prevent!

In summary, the PD violated petitioner's

equal protection rights when they undertook

the action (directive from his Police Surgeon,

to file for disability retirement, RA at 179,

208) that placed him before the Medical

Board--although they treated a "substantial"

number of similarly situated officers diff-

erently. Petitioner reminds this Court that,

that action, on the part of the PD, supra,

constituted an unwarranted and unlawful re-

moval of him. And that the PD further vio-

lated petitioner's equal protection rights,

when they prevented his promotion--although

they promoted other officers, under the [p)re-

cise circumstances, for which they advanced,

was the reason they prevented his promotion;

in addition to allowing them to remain with

the Department.

(47)

ARGUMENT

DUE PROCESS

Petitioner contends that this Court, as

designated last-resort guarantor of Constit-

Ution's command, possesses and must use pow-

er equal to its responsibility and sometimes

must act in areas reserved to state courts

(as policy of non intervention). The right

to a hearing, before a governmental agency,

whose proposed action will affect the rights,

duties, powers or privileges of, and is dir-

ected at, a specific person, has iong been

imbedded in our jurisprudence; and the touch-

stone of that due process is fundamental

fairness (U.S C.A. 14; West's Ann. Const.,

Art. 2, Beetion 7, A}. Therefore, the fund-

amental due process requirements of a "fair"

and "impartial" hearing are reasonable

notice and a reasonable opportunity to be

heard (Anderson Nat. Bk. v. Luckett, 321 U.S.

233, 64 S. Ct. 599, 88 L.Ed 692, emphasis

supplied). Petitioner contends that he was

denied procedural due process--since he was

(48)

[n]Jever notified that, he had passed Exam

8539; he was statutorily-entitled to oppose

the Medical Board's determination; he had

been disqualified from promotion (New York

City Administrative Code 13-206 (d), New

York Civil Service Law Section 50, 4), by the

PD. Further that, the New York State Court

of Appeals holding in Deas v. Levitt, 73 NY

2d 525, denied him (as well as a substantial

number of others each year) procedural due

process; that its restriction, pursuant to

the expiration of an eligible list, pre-

cludes adequate State post-deprivation

remedy--and which, thereby, defeats one's

reasonable opportunity to be heard. New

York Civil Service Law Section 50 (4) pro-

vides that:

"No person shall be disqualified

pursuant to this subdivision un-

less he has been given a written

statement of the reasons therefor

and afforded an opportunity to

make an explanation and to sub-

facts in opposition to such dis-

qualification " (Emphasis sup-

plied.)

There are no exceptions either express-

ed, or implied in the "notice provision" of

the law, supra. Moreover, there is substant-

ial case law that supports petitioner's con-

tention--to satisfy due process requirements,

applicants and/or eligibles must be notified

of their contemplated disqualification, and

afforded an opportunity to be heard; petit-

ioner demonstrated the supporting law to the

Court of Appeals ("Reply" letter submission

of March 9, 1992, P.13-14; letter request-

ing reconsideration of the Court's decision,

July 24, 1992 at P.6)--see Griffin v. Carey,

D.C.N.Y. (1982) 547 F. Supp. 449; Matter of

City of New York v. City Civil Service Com'n,

(1988) 141 Misc.2d 276, 532 N.Y.S.2d 626;

Ferrine v. Babou, (1980) 75 A.D.2d 669, 426

N.Y.S.2d 853; Matter of Canarelli v. New

York State Dept. of Civil Service, (1974)

44 A.0.20 645, 333 N.¥.S.2¢ 2739; Mert.

Bronstein, (1974) 43 A.0.2¢d 936, 353 N.Y.S.2¢

186; Dower v. Poston, (1973) 76 Misc.2d 721,

Jon N.Y.5.2¢ 272, > TG ie the “enticipstion"

(50)

of disqualification that [rJipens the "notice

provision" of New York Civil Service Law

Section 50 (4). And, although the Appellate

majority and the Court of Appeals held that,

the petitioner was not entitled to notice

of, and an opportunity to oppose his disqual-

ification (Appellate memorandum at P.Bi2-13)--

because the revised eligible list was not

published until September 9, 1983, which was

after the petitioner's retirement, it was

when petitioner's disqualification took

place, that "ripened" the “notice provision"

of the law, supra; and that event took place,

in effect, well before petitioner's retire-

ment (August 31, 1983), and the date that

the revised list was published (September 9,

1983). Petitioner's disqualification, in

fact, took place prior to August 17, 1983,

the date that the other passers were not-

ified to attend the indoctrination course,

and from which he was omitted (RA at 83-96) ;

that action, on the part of the PD, constit-

uted a de facto promulgation of the revised

(51)

eligible list and, as such, violated the

"notice" requirement of Civil Service Law

Section 50 (4), supra (Appellate dissent at

P.B25-20Appendix ). Furthermore, the September

9, 1983 publication of the revised eligible

list (which took place prior to the date that

the other, additional passers were promoted--

September 12, 1983, RA at 35) could not pos-

Sibly have constituted its promulgation;

Since all of the original passers had already

been promoted, from List 8539, when the list

of additional passers, pursuant to the re-

rating of that Exam, was delivered to the PD

on July 20, 1983 (RA at 34). Therefore, the

only list that was at issue, in this matter,

was the one that was delivered to the PD on

July 20, 1983; and it was when the PD under-

took action, on this “particular” list, that

constituted its promulgation; and that event

took place prior to August 17, 1983--which

was the date that the other passers were not-

ified, by the PD, to attend the indoctrinat-

10n course (RA at 83-96, emphasis supplied

(S52)

for ease of comprehension). Petitioner

brought this issue to the attention of the

Court of Appeals, and demonstrated the sup-

porting evidence, in his letter submission

(argument) of February 17, 1992, thereto,

at P.14-17, and again, in his July 24, 1992

request of the Court, to reconsider its de-

cision, at P.2-3, 5. Petitioner reminds the

Court that, the day on which he was ordered

to report to the PD Pension Section, for pro-

cessing (Sertember 1, 1983), he was unaware

that he had passed Exam 8539--and that the

PD had disqualified him from promotion; fur-

ther that, he waived over 105 days of accrued

leave and retired effective August 31, 1983,

pursuant to the advice of processing person-

nel, thereat, that by doing so--petitioner

would reduce his tax liability for that year.

With the benefit of "notice," as required by

Statute, that he had been disqualified from

promotion, petitioner could have remained a

member of the PD well past the date that the

(53)

others were promoted, from the "additional"

list (September 12, 1983)--by utilizing the

leave, supra--and challenged the Police Com-

missioner's decision. In January of 1992,

132 candidetes--who had been notified of

their contemplated disqualification, by the

PD, from ‘appointment to police officer--

appealed to the New York City Civil Service

Commission; however, their List (#7009) ex-

pired, and pursuant to Deas, consideration

for appointment ends with that event. And,

because no review, of any of the determinat-

10ns was possible, that Commission vacated

"each" disqualification. The Commission,

Supra, advised the appellants (P.KU-T) letter

notification) that, they could raise a number

of claims for relief: 1) a claim that the

City's delay in processing appeals to the

Commission and/or disqualifying appellants

was in bad faith, Deas, 73 NY¥2d 525, 533,

fn.1, emphasis supplied; 2) a claim that the

City's determination violates a liberty or

property interest of appellant, or that

(94)

appellant is entitled to a name-clearing hear-

ing, see Matter of City of New York v. City

Civil Service Commission (Gariti), 141 Misc.

2d 276, 1988; and/or 3) a claim that the City

failed to properly carry out its authority, to

determine the eligibility of a candidate, see

Levoci v. Brown, NYLJ Sept. 20, 1991 at 22,

col.3. That action, supra, on the part of

the appeals' "host," bolsters petitioner's

contention that, his disqualification was ‘a.

proper, unlawful and an act of bad faith, on

the part of the PD. With the advent of pet-

itioner having had the opportunity, to appeal

his disqualification, before the Commission,

supra, concomitant with candid notice from the

PD, thereto, that they, in fact, had not dis-

qualified--from promotion--a substantial num-

ber of other seriously injured officers, there

is no doubt, he would have prevailed; and that

event could have taken place prior to the ex-

piration of petitioner's eligible list (Septem-

ber 19, 1984, RA at 296). The high court hoid-

ings of Texas, Ohio and New Jersey (illustrat-

(55)

ed in equal protection argument) are in con-

flict with New York's holding in Deas--by

their not limiting relief to the life of

one's eligible list; which, by New York's

failure to provide a similar, adequate rem-

edy, to "likened" residents, denies them, due

process. Moreover, in Duckett v. City of

Houston, 495 $.W.2d 883, that State's high

Court compelled the petitioner's promotion,

from an expired list--~even though he had com-

menced the action, after it expired (id., at

884, emphasis supplied). Petitioner had a

"protected" property right to "notice" that,

he could have opposed the Medical Board's de-

cision (New York City Administrative Code 13-

206, d); and the concomitant right to a hear-

ing--to defend against the taking of his job,

for medical reasons. This contention is based

upon the facts that, other officers, who were

equally, if not more seriously injured than the

petitioner, were allowed to remain within the

Department, and serve-in the very rank--for

(56)

which the petitioner was denied promotion, and

forced to retire. Petitioner's appointment,

to the PD, was accepted, by both him and the

City, with the expressed condition, that he

could occupy a position, therein, for 20

years, and, at his option, either retire, or

remain until age 63; hence, petitioner had a

tenured contract with the City of New York.

In Charles v, Baesler, 910 F.2d 1349 (6th Cir.

1990), the United States Court of Appeals

noted:

"In sum we do not conclude that

all state-created rights lack

substantive due process protect-

ion. For example, substantive

due process may well protect a

contract right to keep a tenured

job, Ramsey v. Bd. of Ed., Whit-

ley County, Kentucky (6th Cir.,

iShBy- ary. F.2d 1268, 74-75

(dicta), although it may also

be, in light of the fact that

"substantive due process rights

are creeted only by the Constit-

ution,' Regents of the Univer-

sity of Michigan v. Ewing, 474

U.S. 214, 229, (Powell, J., con-

curring), that tenure is in fact

@ protected fundamental liberty

interest once it is conferred by

contract. See Harrah Independent

School District v. Martin , 440

U.S. at 197-98. Cf. Sullivan v.

(57)

Brown, 544 F.2d 279, 283 (6th Cir.

1976) (liberty interest in contin-

ulng employment opportunity) ."

(id., at 1355, emphasis supplied. )

The instant dispute involves an interest

of sufficient weight to merit the protection

of the substantive due process clause--as well

as procedural. The vast number of individuals,

throughout the State of New York, who are both

denied appointment to civil service positions,

through disqualification--and their court

Standing to oppose same, pursuant to the dra-

conian effect of Deas--supports petitioner's

contention, supra. The right to oppose one's

disqualification, from a civil service appoint-

ment, has evolved into a fundamental right,

in the United States; substantial court de-

cisions support this contention. Moreover,

all that would be required of an appointing

agency, to disqualify an individual--who could

not otherwise, be properly rendered unfit--is

to withhold notice, until just prior to the

expiration of his/her eligible list; and the

cloak of Deas will sterilize the determination,

(58)

—————

by defeating that individual's opportunity to

@ judicial challenge. Petitioner had a "pro-

tected" property right to be fairly consider-

ed for appointment to sergeant--and both not-

ice of, and a hearing to oppose his disqual-

ification. This contention is based upon the

facts of the promotions of a substantial num-

ber of other seriously injured officers, who

the PD failed to disqualify--end were allowed

to remain, therein. Those actions, on the

part of the PD, supra, demonstrate, unequiv-

ocally, that the petitioner was never fairly

considered for equal treatment; and the pet-

itioner had the right to wage a battle, to

protect his interest--in securing the same

benefits that the others enjoyed!

The dissenting opinion of the Deas Court

(per Justice Hancock, Jr., J.) specifically

noted, with regard to a property interest in

being fairly considered for appointment, that:

"Preliminarily, it should be ev-

ident that petitioner's due pro-

cess argument does not depend on

a claimed State law right to ap-

pointment. Rather, his property

interest stems from his expect-

(59)

ancy uncer State law of being

fairly considered for a4 posit-

ion based upon his relative mer-

it and fitness. The distinction

is critical because the cases re-

lied on by the plurality (Matter

of Cassidy v. Municipal Civ. Serv.

Commn., 37 NY2d 526; Board of Re-

gents v. Roth, 408 US 564) in-

volve claimed property rights to

appointment. An applicant, such

as petitioner, who ranks in the

top three for a particular posit-

ion must be considered, as a mat-

ter of statutory right, unless

there is some valid ground for

finding the applicant unfit (see

Civil Service Law Section 50 [4];

Section 61). Petitioner's State

property interest includes the

right to be fairly considered

solely on the basis of his rel-

ative qualifications. It also

includes the concomitant right

not to be excluded from consid-

eration for a merited appoint-

ment by being mistakenly dis-

qualified. It is to assure this

protection that the State has de-

vised the appeal procedures which

petitioner used here see, e.g.,

NY City Cherter Sections 812 [c];

813 [a] [3]-[8]); [{b] [5]; 73 NY2d

925 540." (Emphasis supplied. )

"In Matter of Cassidy v. Municipal

Civ. Serv. Commn., supra, we stat-

ed that ‘petitioner does not pos-

sess any mandated right to appoint-

ment or eny other legally protect-

ible interest. He can assert at

most the right to consideration

for and a hope of appointment"

(37 NY2d 526, 529). The plurality

underscores the phrase ‘or any

(60)

other legaily protectible inter-

est' apparently to dewonstrate

that we held there is no right

to be considered for appointment.

In Cassidy the plaintiff, however,

had been considered. His only

claim was to appointment. thus,

we could not and did not hold

that there is no property right

to consideration."(F n. [4], 1d.,

at 540, Deas v. Levitt, 73 NY2qa

525, emphasis supplied. )

Although the plurality, in the Deas

Court, relied on Cassidy, supra, to hold that,

there is no property interest in being fairly

considered for appointment--their holding was

in conflict, thereto; Cassidy had been consid-

ered--his only claim was to appointment. Pet-

itioner supports his contention, that he had

@ protected property interest in being fairly

considered for promotion with the Federal Dis-

trict Court for the Southern District of New

York's holding in the Matter of Drogan v. Ward,

675 F. Supp. 832. That Court, supra, held

that, Civil Service Law Section 61 and section

3.6 of the Rules and Regulations of the De-

partment of Civil Service (4 NYCRR) served to

provide an applicant, who has successfully

(61)

passed an examination with a "claim of entitle-

ment™ to be considered for promotion or ap-

pointment (see also, Griffin v. Carey, 547 F.

Supp. 449, 453). Petitioner brings to the at-

tention of the Court that, while Deas was able

to make effective use of the administrative

appeal process--he was denied -a reasonable op-

portunity to be heard, by not having been not-

ified of his disqualification; and that dis-

tinguished him from Deas. The PD's failure to

notify the petitioner of his disqualification,

demonstrates, unequivocally, that they never

fairly considered him for promotion. And, be-

cause the other seriously injured officers

(who were both promoted and allowed to remain

with the PD) were deemed to be fit for, and

merited promotion--petitioner's disqualificat-

10n was invalid, and must not be allowed to

Stand!

Deas defeats the Constitutional guaranty

of a hearing (post deprivation), and spoils a

process that must be fundamentally fair--and,

as such, fails to provide an adequate state

(62)

postdeprivation remedy. In the Matter of

Zinermon v. Burch, (1990) 494 U.S. 113, 125,

this Court stated that, "the Due Process

Clause contains a substantive component that

bars certain arbitrary, wrongful government

actions--as well as a guaranty of a fair pro-

cedure." The New York State Court of Appeals'

holding in Deas, that provides a remedy for

those who challenge the constitutionality of

their civil service eligible list--but denies

Similar relief, to those who challenge the

constitutionality of his/her denied appoint-

ment, from a similar list--is arbitrary,

wrongful and unfair.

CONCLUSION

DUE PROCESS

The PD's refusal to notify the petitioner

that, he had passed Exam 8539; he was stat-

utorily-entitled te oppose the Medical Board's

“determination; he had been disqualified from

promotion--denied him reasonable notice of

these events and, thereby, prevented any op-

portunity for him to be heard. And, further

(63)

that, the Court of Appeals' holding in Deas,

which restricts one's relief, in matters such

as this, to the life of his/her eligible list,

debars an adequate State postdeprivation rem-

edy--and violates the Constitutional guaranty

of both due process and equal protection to

New York's residents. The actions, on the

part of the PD--as mentioned, herein--vio-

lated petitioner's Constitutional right to,

and guaranty of, both due process and equal

protectionr!.

RELIEF SOUGHT

In the event that this Court grants sum-

mary judgment, instead of certiorari, petit-

loner requests--in addition to the relief

sought--reasonable damages, for the PD's will-

ful violations of his equal protection and

due process rights; pursuant to Section 1983

of Title 42, U.S. Code, with costs.

AND

That this Court issue an order that the

petitioner be immediately reinstated to the

PD, at the rank of full pay sergeant--to in-

(64)

clude the following:

a. Service and pensionable credit for his en-

tire absence from the PD.

b. That he be allowed to remain, therein, or

retire at his option.

c. The difference between that of a police

officer and sergeant--with interest--in

his pension allowance, for the entire per-

iod of his absence from the PD.

d. Makeup exams for lieutenant and captain.

e. Any, and all other benefits due him, dur-

ing his absence, commensurate with the rank

of sergeant, OR

Issue an order mandating that the PD im-

mediately rerate, retroactively, petitioner's

retirement allowance, to that of sergeant,

with commensurate accrual of interest; in-

—cluding his request, pursuant to Section 1983

of Title 42, U.S. Code--with costs. Any and

other relief that, to this Court, is just and

proper.

(65)

APPENDIX

Rule 14(h)

Federal Question

"EQUAL PROTECTION”

COURT LOCATION LOCATION

RAISED IN IN

IN PETITION RECORD

New York County

Supreme 10-14 110-111

130-136

139-141

142-181

196-219

206-207

218-219

CR Os or re eee eee ee ee 262-271

340-344

ae ae ak on kk 361-364

377-380

398-399

- 414

420-422

op Re EA or ORE a re 440-442

452-456

Appellate Petition-

Division er's Brief

14-15 7-23, 67

Court of Jurisdict-

Appeals ional State-

ment

15-16 5-/

Letter sub-

mission of

02/17/1992

5-6, 11-12,

APPENDIX

COURT LOCATION

RAISED IN

IN PETITION

Court of

Appeals (cont.)

15-16

LOCATION

RECORD

Reply Com-

ments of

03/09/1992

1-6, i1

Request For

Reconsider-

ation of

07/24/1992

23 ., fs ae

"DUE PROCESS"

New York County R/A

Supreme 16-19 - 15

98-99

POGERSON: 6c kde Oise eee 6 eee 101-105

149

196-217

LOCCOE CUBGLORAUR «0 353 00 08k 218-219

POCSOGOR ios 55-3 kd 644 ORR Oe 268

331-350

DORA OEON 6 s-c-0 os 0 00nd ka hea eee 361-364

365-399

DROERION « ioc 65600 eS ee eee eee 440-442

443-456

Decision (as was RA at 440-442)..... Not part

United States 17

District Court,

Southern Dist.

PN DS os "as a's bora eats eee ee ae aaa

of record

246-258

COURT

RAISED

.. Se

Appellate

Division

Court of

Appeals

111

APPENDIX

LOCATION

PETITION

19-20

22-23

LOCATION

RECORD

Petition-

er's Brief

57-64, 67

Brief

11-13

Jurisdict-

ional State-

ment

7-9, 12-13,

16-17

Letter sub-

mission of

02/17/1992

5, 8, 17-18,

20-23

Reply Com-

ments of

03/09/1992

4-7, 10,

12-14

Request For

Reconsider-

ation of

07/24/1992

1-3, 6-8,

10-11

APPENDIX

Rule 14(k)

Exhibit "A" Decision of the New York State

Court of Appeals (06/11/1992).

Exhibit "B" Decision of the New York County

Supreme Court, Appellate Division

(12/12/3981).

Exhibit "C" Decision of the New York County

Supreme Court (04/01/1991).

Exhibit "D" Decision of the New York County

Supreme Court (01/22/1991).

Exhibit "E" Decision of the New York County

Supreme Court (08/23/1990).

Exhibit "F" Decision of the New York County

Supreme Court (10/28/1987).

Exhibit "6" Decision of the United States

District Court, Southern Dis-

trict (06/26/1987).

Exhibit "H" Order denying reargument, "Mot-

ion No. 959," of the New York

State Court of Appeals

(09/22/1992).

Exhibit "I" Order of the Honorable Clarence

-”

Thomas--extending the time to

Exhibit

wal” fang

i a

APPENDIX

file for writ of certiorari, to.

and including, February 19, 1993.

Notification from the New York

City Police Department--denying

petitioner retroactive promotion.

Memo from the New York City Civil

Service Commission to 132 indiv-

iduals--who had appealed, there-

to, their disqualifications from

appointment to police officer--

advising that each had been va-

cated; pursuant to that Commis-

sion's inability to effect review,

because their eligible list had

expired (citing Deas v. Levitt,

73 N.Y.2d 525).

iii

APPENDIX

RULE 14(F)

New York City Administrative Code Section

13-206(d) (demonstrated as item 1. on Page 2

of petition), pertinent text:

"Any member, within thirty days

after receipt of the decision by

the Medical Board may request

that the Medical Board's deter-

mination be reviewed, by a spec-

ial medical board, which shall

consist of one doctor of the

Medical Board, and a doctor se-

lected and compenseted by such

member."

Rule 4.3.2 of the New York City Personnel

Director (item 4.):

"Any physical or mental disabil-

ity, disease, injury, abnormal-

ity, defect or the history there-

of, which renders a person unfit

for the perfctrmance of the duties

of the position the person seeks,

or the failure to meet the re-

quired medical or physical stand-

ards of a position, shall con-

stitute grounds for the disqual-

ification of such person."

(Emphasis supplied. )

United States Code, Section 1983 of Title 42

(item 5.):

"Every person who, under color

of any statute, ordinance, reg-

1111

APPENDIX

ulation, custom, or usage of any

State or Teritery, subjects, or

causes to be subjected, any cit-

izen of the United States or

other person within the juris-

diction thereof to the depriv-

ation of any rights privileges

or immunities secured by the Con-

stitution and laws, shall be li-

able to the party injured in an

action at law, suit in equity,

or other proper proceeding for

redress." (Emphasis supplied. )

Dated: Massapequa, New York

February 10, 1993

TERRY J. HASENSTAB

Petitioner/PRO SE

42 Peconic Dr. No.

Massapequa, N.Y.

11758

516 795 3877

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.