| Matter of Rodriguez v County of Nassau |
| 2011 NY Slip Op 00384 [80 AD3d 702] |
| January 18, 2011 |
| Appellate Division, Second Department |
| In the Matter of Sebastian E. Rodriguez, Respondent, v Countyof Nassau et al., Appellants. |
—[*1] Thomas F. Liotti, Garden City, N.Y. (Edward A. Paltzik of counsel), for respondent.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination by the NassauCounty Civil Service Commission dated June 25, 2008, which disqualified the petitioner from theapplication process for a position as a Nassau County Correction Officer, the appeal is from ajudgment of the Supreme Court, Nassau County (Woodard, J.), entered December 11, 2009, whichgranted the petition and vacated the determination.
Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed, thepetition is denied, and the proceeding is dismissed.
In December 2007 the petitioner passed an exam for a position as a Nassau County CorrectionOfficer. Thereafter he was informed by letter dated April 29, 2008, from Officer G. Friel of the NassauCounty Police Department, Applicant Investigation Unit, as follows: "You are advised that thisDepartment is now preparing for the investigation of your character and background, to determine youreligibility for the position of Correction Officer. Therefore, you are directed to contact this office at [aspecified phone number] to receive further information and schedule an appointment. If you fail tocontact me by May 5, 2008, your application may be discontinued." Officer Friel also left four voicemessages on the petitioner's cellular telephone voicemail in an attempt to contact him. The petitionerneither answered the letter nor returned the telephone calls before the May 5, 2008, deadline hadpassed. As a result, by letter dated June 11, 2008, the petitioner was informed by the Nassau CountyCivil Service Commission (hereinafter the Commission) that he had been "disqualified for. . . failure to cooperate with [his] background investigation." The same letter also advisedthe petitioner that he had the right to "make explanation and to submit facts in opposition to suchdisqualification." By letter dated June 16, 2008, the petitioner wrote to the Commission alleging that henever received the letter dated April 29, 2008, and that because he did not regularly use his cellulartelephone, he was unaware of [*2]the voice messages from OfficerFriel until the week of June 2, 2008. By letter dated June 25, 2008, the Commission advised thepetitioner that after review it had decided to uphold the original disqualification notification.
The petitioner then commenced this CPLR article 78 proceeding, contending that the determinationwas "arbitrary and capricious and without just cause or good sound reason." The Supreme Courtgranted the petition, explaining, inter alia, that there was no "rational reason" why the appellants did notattempt to contact the petitioner either through his previously provided home or work telephonenumbers, and that the appellants had failed to explain how the petitioner's delay "adversely affected theapplication process." We reverse.
"[I]n a proceeding seeking judicial review of administrative action, the court may not substitute itsjudgment for that of the agency responsible for making the determination, but must ascertain onlywhether there is a rational basis for the decision or whether it is arbitrary and capricious. Moreover,where . . . the judgment of the agency involves factual evaluations in the area of theagency's expertise and is supported by the record, such judgment must be accorded great weight andjudicial deference" (Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987] [citationsomitted]; see CPLR 7803 [3]; Matter of Sasso v Osgood, 86 NY2d 374, 384[1995]; see also Matter of Fogelman v NewYork State Dept. of Envtl. Conservation, 74 AD3d 809, 810 [2010]). Furthermore, anappointing authority has "wide discretion in determining the fitness of candidates" (Matter of Verme v Suffolk County Dept. of Civ.Serv., 5 AD3d 498, 498 [2004]; see Matter of Gramando v Putnam County Personnel Dept., 58 AD3d842, 844 [2009]; Matter of Mullen vCounty of Suffolk, 43 AD3d 934, 935 [2007]; Matter of Villone v Nassau County Civ. Serv. Commn., 16 AD3d 591,592 [2005]).
Here, as the Supreme Court concluded, the petitioner failed to rebut the presumption of deliveryand receipt of the letter dated April 29, 2008, advising him to contact the Police Department toschedule a background interview (see Wasifv Khan, 36 AD3d 610, 611 [2007]; Matter of Most v Morrison, 280 AD2d 603,604 [2001]). Nor does the petitioner allege that the Commission was required to do more than sendsuch a letter. Although the Supreme Court concluded that it was irrational for Officer Friel to simply usethe petitioner's cellular telephone number in his attempts to contact the petitioner, these phone callswere merely a courtesy. It was the letter dated April 29, 2008, which provided the petitioner withreasonable notification of the deadline by which he was required to make his background interviewappointment.
Moreover, the Commission's determination to disqualify the petitioner based upon the failure totimely schedule the background interview was neither irrational nor arbitrary. Accordingly, it was errorfor the Supreme Court to substitute its judgment for that of the Commission (see Matter of Jenningsv New York State Off. of Mental Health, 90 NY2d 227, 239 [1997]; Matter of Gramando vPutnam County Personnel Dept., 58 AD3d at 844; Matter of Mullen v County of Suffolk,43 AD3d at 935; cf. Matter of Villone v Nassau County Civ. Serv. Commn., 16 AD3d at592). Rivera, J.P., Dickerson, Lott and Sgroi, JJ., concur.