| Matter of Mullen v County of Suffolk |
| 2007 NY Slip Op 06690 [43 AD3d 934] |
| September 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of Thomas J. Mullen, Appellant, v County ofSuffolk et al., Respondents. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (John R. Petrowski of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of theCounty of Suffolk Police Department dated October 1, 2003, removing the petitioner fromfurther consideration for employment with the Ocean Beach Police Department, the appeal isfrom (1) an order of the Supreme Court, Suffolk County (Jones, J.), dated January 23, 2006,which denied, as academic, the petitioner's motion to strike, among other things, certain portionsof an affidavit of the respondent Donald Montgomery dated September 30, 2005, submitted inresponse to the petition, and (2) a judgment of the same court entered January 25, 2006, which,among other things, denied the petition and dismissed the proceeding.
Ordered that the appeal from the order is dismissed, as no appeal lies as of right from anorder in a proceeding pursuant to CPLR article 78 (see CPLR 5701 [b]); and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The petitioner was a candidate to become a police officer in the Ocean Beach PoliceDepartment. In order to qualify for the position, he had to pass a polygraph examination. Because[*2]the respondents determined that the results of his polygraphexamination indicated that the petitioner was deceptive in his response to questioning concerninghis involvement with illegal drugs and narcotics, the respondents disqualified him from furtherconsideration for employment as a police officer.
The petitioner challenged the determination in a proceeding pursuant to CPLR article 78. TheSupreme Court denied the petition and dismissed the proceeding. On appeal, this Court modifiedthe judgment, granted that branch of the petition which was to annul the determination, andremitted the matter to the respondents for completion of the administrative appeal process byforwarding the petitioner's polygraph results to an independent police unit for verification(see Matter of Mullen v County of Suffolk Police Dept., 307 AD2d 1036 [2003]).
The petitioner's polygraph test results were submitted to the Vermont State Police forverification. The independent review confirmed that the petitioner was deceptive in his responseto questioning concerning his involvement with illegal drugs and narcotics. Thereafter, therespondents notified him by letter dated October 1, 2003, that he was disqualified from furtheremployment consideration. As a result, the petitioner commenced this proceeding pursuant toCPLR article 78. In opposition to the petition, the respondents submitted the respondent DonaldMontgomery's affidavit dated September 30, 2005. The petitioner moved, inter alia, to strikecertain portions of the affidavit because Montgomery referred to a March 1, 2004 review of thepetitioner's polygraph test results by a second independent agency. This motion was denied in anorder dated January 23, 2006.
The respondents did not act irrationally or arbitrarily in relying on the results of their ownpolygraph test as well as the review conducted by the Vermont State Police to determine that thepetitioner was not an appropriate candidate to be a law enforcement officer. "An appointingauthority has wide discretion in determining the fitness of candidates . . . Thisdiscretion is particularly broad in the hiring of law enforcement officers, to whom high standardsmay be applied . . . As long as the administrative determination is not irrational orarbitrary, this Court will not interfere with it" (Matter of Verme v Suffolk County Dept. of Civ. Serv., 5 AD3d498, 499 [2004] [citations omitted]; see Matter of Mark v Schneider, 305 AD2d 685,686 [2003]; Matter of Needleman v County of Rockland, 270 AD2d 423, 424 [2000]).
Further, the petitioner failed to demonstrate his entitlement to a name-clearing hearing(see Matter of Swinton v Safir, 93 NY2d 758, 763 [1999]; Matter of Rivera v Department of Educ.,City of N.Y., 25 AD3d 559, 560 [2006]; Matter of Cardo v Murphy, 104 AD2d884, 885 [1984]). Accordingly, the Supreme Court properly denied the petition and dismissed theproceeding.
The petitioner's remaining contentions are without merit. Schmidt, J.P., Crane, Krausmanand Dickerson, JJ., concur.