Denny v. New York City Transit Authority/Metropolitan Transportation Authority

Judgment, Supreme Court, New York County (William Davis, J.), entered February 3, 1993, which granted petitioner’s application pursuant to CPLR article 78 to the extent of directing respondent New York City Transit Authority to promote petitioner to the permanent title of Railroad Stock Handler as of January 5, 1992, with all back pay and seniority benefits restored as of that date, unanimously affirmed, without costs. There can be no dispute with respondent’s contention that petitioner had no vested right to permanent appointment by reason of his position on the eligibility list, and that the appointing officer had broad discretion to select among the various individuals on the list (see, Matter of Aladin v Schultz, 176 AD2d 205, 206). However, we reject respondent’s contention that its removal of petitioner’s name from the eligible list and failure to promote him to a permanent position was in good faith and find unsatisfactory respondent’s explanation for finding petitioner’s record unacceptable, especially since his record was found "acceptable” approximately four months later, less than two weeks after the return date of the article 78 petition. 373 Motion by New York City Department of Personnel for leave to appear as amicus curiae is granted; the motions are granted wherein they seek reargument, and, upon reargument, the unpublished decision and order of this Court entered on September 28, 1993 is recalled and vacated, and a new decision and order decided simultaneously herewith. The motions wherein they seek leave to appeal to the Court of Appeals are denied. Concur — Murphy, P. J., Sullivan, Kupferman and Nardelli, JJ.