| Tardif v Town of Southold |
| 2008 NY Slip Op 09381 [56 AD3d 755] |
| November 25, 2008 |
| Appellate Division, Second Department |
| John J. Tardif, Appellant, v Town of Southold et al.,Respondents. |
—[*1] Baxter, Smith, Tassan & Shapiro, P.C., Hicksville, N.Y. (Arthur J. Smith and Sim R. Shapiroof counsel), for respondents.
In an action, inter alia, to recover damages for age discrimination, the plaintiff appeals froman order of the Supreme Court, Suffolk County (R. Doyle, J.), dated January 29, 2007, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff filed a notice of claim alleging that the defendants, Town of Southold and theTown's police department, did not appoint him as a police officer even though he had "the bestqualifications" and "the number one test score" on the examination to become a police officer.The notice of claim alleged that the defendants discriminated against him on the basis of his age.The plaintiff's complaint asserted two causes of action, one against the Town and the otheragainst the police department, both alleging that the plaintiff was discriminated against by reasonof his age, and "in violation of his constitutional and civil rights." The complaint provided nospecification of which constitutional rights allegedly were violated.
The defendants established their entitlement to judgment as a matter of law dismissing thecomplaint (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The defendantsdemonstrated that they did not [*2]discriminate against theplaintiff because of his age. Rather, he was not hired because he submitted deceptive responses inhis application to become a police officer. Accordingly, the defendants established, prima facie,that they had a legitimate, nondiscriminatory reason for not hiring the plaintiff (seeHemingway v Pelham Country Club, 14 AD3d 536, 536-537 [2005]).
In opposition to the motion for summary judgment, the plaintiff did not make any argumentin support of his age discrimination claim. Rather, the plaintiff argued that the defendantsviolated his constitutional rights to due process and equal protection in other ways and that thereference in his complaint to a violation of "his rights, privileges, and immunities" pleaded theseother constitutional violations. However, the plaintiff failed to raise a triable issue of fact withregard to any constitutional claim (see Zuckerman v City of New York, 49 NY2d 557,562-563 [1980]; Rendon v Castle Realty, 28 AD3d 532 [2006]).
Contrary to the plaintiff's contention, he does not have a protectable property interest in aposition with the Town's police department that would entitle him to maintain a due processclaim. An individual does not have a "legally protectable interest" in an appointment to theposition of police officer merely because he or she achieved a sufficient score on the examinationto be placed on an eligibility list (Matter of Andriola v Ortiz, 82 NY2d 320, 324 [1993];see Matter of Cassidy v Municipal Civ. Serv. Commn. of City of New Rochelle, 37NY2d 526, 529 [1975]). An applicant's placement at the top of the eligibility list followingexamination, as was the case with the plaintiff here, does not alter the principle that there is noprotectable interest in appointment. " 'An appointing authority has wide discretion in determiningthe fitness of candidates . . . This discretion is particularly broad in the hiring of lawenforcement officers, to whom high standards may be applied . . . As long as theadministrative determination is not irrational or arbitrary, this Court will not interfere with it' "(Matter of Mullen v County of Suffolk, 43 AD3d 934, 935 [2007], quoting Matter ofVerme v Suffolk County Dept. of Civ. Serv., 5 AD3d 498, 499 [2004]).
Moreover, the plaintiff failed to raise a triable issue of fact as to whether the defendantsdeprived him of a protected liberty interest (see Siegert v Gilley, 500 US 226, 233[1991]; Matter of Swinton v Safir, 93 NY2d 758, 765 [1999]). The plaintiff also failed toestablish entitlement to a name-clearing hearing.
As the plaintiff did not have a property interest in appointment as a police officer and failedto raise a triable issue of fact as to the deprivation of a protected liberty interest, the SupremeCourt properly determined that the plaintiff failed to raise a triable issue of fact as to whether hewas deprived of his constitutional right to due process (see Matter of Scarpati-Reilly v Townof Huntington Bd. of Ethics & Fin. Disclosure, 300 AD2d 404 [2002]; Home Depot,U.S.A. v Dunn, 305 AD2d 459 [2003]; see also Valmonte v Bane, 18 F3d 992[1994]; White Plains Towing Corp. v Patterson, 991 F2d 1049 [1993]).
The plaintiff also failed to raise a triable issue of fact as to his claim of a denial of equalprotection (cf. Darby Group Cos., Inc., Distribs. v Village of Rockville Ctr., N.Y., 43AD3d 979 [2007]; Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d517 [2004]; see Village of Willowbrook v Olech, 528 US 562 [2000]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo andBalkin, JJ., concur.