Puntillo v. Abate

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered April 5, 1993, which denied petitioner’s application pursuant to CPLR article 78 to compel respondents to reinstate him as a correction officer, and dismissed the petition, unanimously affirmed, without costs. As a prior probationary employee who resigned his position, petitioner requested, and was granted, restoration to the eligible list from which he had been selected pursuant to Department of Personnel Rules (59 RCNY Appendix A), rule 5.2.6. Petitioner acknowledges that such restoration bestowed no right of reappointment (Matter of Deas v Levitt, 73 NY2d 525, 532, cert denied 493 US 933), but argues that it was arbitrary and capricious of respondents not to expedite the medical and psychological examinations and background investigation they required him to undergo as a condition to reappointment, with the result that the list to which petitioner was restored expired three days after his certification. We agree with the IAS Court that the delay of which petitioner complains, and respondents’ refusal to appoint petitioner in the three-day interval, do not raise an issue whether 305 his application for reinstatement was not processed in a fair and impartial manner (see, Matter of Franchina v Codd, 46 NY2d 816, revg on dissenting opn 57 AD2d 394, 400, 402-403). Nor was it arbitrary and capricious of respondents to require petitioner to undergo another set of medical examinations as a condition to his reappointment from a second eligible list in which petitioner had been placed prior to his probationary appointment, almost a year having passed between the medical examinations conducted in connection with petitioner’s application for reappointment from the first list and his restoration to the second list (see, Matter of Rigia v Koehler, 165 AD2d 525). Concur—Carro, J. P., Wallach, Ross, Rubin and Tom, JJ.