Schatzel v. Connelie

— Cross appeals from a judgment of the Supreme Court at Special Term (Klein, J.), entered October 7, 1982 in Albany County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to require respondents to maintain petitioner’s position on the eligibility list for the position of New York State trooper. On June 27,1981, petitioner took and passed an examination for New York State trooper. On July 22, 1981, petitioner was advised that he received a score of 99 out of a possible 105 points. Petitioner’s score was not high enough to entitle him to an appointment in the fall of 1981 class for State trooper. However, in early 1982, petitioner was given and was advised that he passed the physical exam in preparation for an appointment in the next class. Respondents had anticipated to appoint a class of State troopers in April, 1982, but due to fiscal problems such appointments were not made. Subsequently, it was established that the next class would be appointed in October, 1982. Petitioner turned 29 on September 25, 1982. This being the case, pursuant to subdivision 3 of section 215 of the Executive Law, petitioner was notified on June 3,1982 that he would be over age prior to receiving an appointment and, accordingly, his name would be removed from the eligibility list. Petitioner requested that respondent Superintendent of the New York State Police (superintendent) exercise his discreion and admit him to the class. This request was not granted and the instant proceeding was commenced. Special Term granted the petition, holding that the refusal of the superintendent to exercise his discretion in this case was arbitrary and capricious when compared with his action in a similar case involving one Peggy Casey. These cross appeals ensued. Subdivision 3 of section 215 of the Executive Law provides that: “No person shall be appointed to the New York state police force unless he shall be * * * between the ages of twenty-one and twenty-nine years except that the superintendent, in his discretion, may extend the maximum age to thirty-five years.” 9 NYCRR 475.1 (b), which concerns appointment procedures, establishes no criteria with respect to the superintendent’s discretion to appoint those over age 29, providing only that the superintendent “may extend the maximum age to 35 years”. Ms. Peggy Casey, as did petitioner, successfully completed the June 27, 1981 examination for State trooper. She became 29 on the day after the exam and, for this reason, was notified on October 9, 1981, that she would not be appointed to a class commencing on October 26,1981. Subsequently, however, the superintendent exercised his discretion, pursuant to section 215 of the Executive Law, and permitted Ms. Casey to enter the October, 1981 class. Since respondents are unable to point to any meaningful distinction between the instant case and that of Ms. Casey, we must agree with Special Term that the superintendent’s refusal to exercise his discretion in petitioner’s favor was arbitrary and capricious (Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, 217, affd 32 NY2d 796, cert den sub nom. Baum v Lefrak Forest Hills Corp., 414 US 1004; cf. Matter of Nicholas v Kahn, 47 NY2d 24). A repetition of these circumstances can be avoided by the proper promulgation of objective standards and criteria for the exercise of discretion by respondent superintendent (Matter of Nicholas v Kahn, supra). Respondents apparently concede that were it not for their actions in removing petitioner from the eligibility list, he would have been appointed as a State trooper in October, 1982. Moreover, at oral argument upon the application to vacate the statutory stay, respondents conceded that an appropriate remedy, should this court rule in petitioner’s favor, would be to order respondents to admit petitioner to the next class of State troopers. We so order. Having reached the above conclusion, it is unnecessary to consider petitioner’s remaining contentions. Judgment modified, on the law and the facts, by adding thereto a provision that petitioner be [1125] admitted to the next class at the New York State Police Academy, and, as so modified, affirmed, without costs. Mahoney, P. J., Sweeney, Kane and Weiss, JJ., concur.