Rapess v. Ortiz

99 A.D.2d 413, 471 N.Y.S.2d 86, 1984 N.Y. App. Div. LEXIS 16568

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 1984
• Status: Published

Opinions

Order entered February 25, 1982 in Supreme Court, New York County (Richard L. Price, J.) which, inter alia, directed “a trial on the issue of laches and, if necessary, on the merits”, reversed, on the law, and the motion to dismiss is granted, without costs. Petitioners are New York City Transit Authority policemen who would rather be New York City Police Department officers. Their CPLR article 78 petition alleges that they took the competitive civil service examination expressly for appointment to the police department, their names thereafter appeared as candidates on the “Eligibility List for Examination Number: 8155” and they each passed all of the requisite physical, psychological and medical exams. Petitioners had thus completed all preliminary requirements and were but awaiting word of their appointment to the department when a Federal court, pursuant to a discrimination lawsuit, imposed hiring guidelines upon the police department. The city responded by establishing a minority ratio system of hiring, and subsequently a class of candidates was appointed off the eligibility list according to the terms of the ratio system. This left petitioners in an uncertain state as to whether eligibility list No. 8155 would continue to be used and hence, whether their candidacies were still viable. About this time, November of 1980, all but one of the petitioners each received a letter or a phone call from agents of respondent New York City Transit Authority offering them a position with the transit police and advising that no further appointments would be made to the New York City Police Department from list No. .8155. (One petitioner alleges that, in a conversation he had with a police investigating officer, he was told the same thing and advised to go for the transit position.) All of the petitioners were sworn in as transit police officers on December 1,1980, and a week later the Mayor announced that several hundred additional policemen would be hired over the course of the first half of 1981. In fact, the department did hire 278 candidates on January 26 and an additional 600 candidates on July 13, 1981. Petitioners were well aware (having been informed by the notice of the examination prior to even taking it) that their acceptance of the transit authority appointments meant that their names were automatically removed from the list, and they could no longer be considered for appointment to the department. As far as appears, none of them protested this procedure or in any way tried to be reinstated to the list following the Mayor’s announcement and the subsequent appointments in January, 1981. Instead, petitioners filed an article 78 petition on October. 2, 1981 alleging that they were fraudulently induced into the transit police force and demanding that they be appointed to the New York City Police Department. Respondents cross-moved to dismiss the petition for failure to state a cause of action and for failure to bring the petition within the four-month period required by CPLR 217. Clearly the motion should have been granted on both these grounds. Petitioners argue that their petition is in the nature of mandamus such that the four-month Statute of Limitations period does not commence until a “demand” has been made, and their petition is the demand. Although it is true that a petition may be deemed a demand (Matter of Central School Dist. No. 2 v New York State Teachers Retirement System, 46 Misc 2d 225, 229, affd on other grounds 23 NY2d 213), nonetheless “the demand must be made within a reasonable him after the right to make the demand occurs or * * * where the petitioner has been misled by the respondent’s conduct, within a reasonable time after he becomes aware of the facts which give rise to his right of relief.” (Matter of Devens v Gokey, 12 AD2d 135, 136-137, affd 10 NY2d 898 [quoted in Matter of Central School Dist. No. 2 v New York State Teachers Retirement System, supra, p 229].) Assuming that petitioners’ right to make a demand arose on January 26, 1981, when 278 candidates were hired (and not on December 1, 1980, when the Mayor announced that further appointments would be made), that still only allowed petitioners eight months (four months to make their demand and four months to bring the petition), or until September 26, 1981. This petition is out of time. (Matter of Devens v Gokey, supra, and cases cited therein.) Petitioners argue that the wrong here is a continuing one and thus they had at least until four months after the July, 1981 appointment to make their demand, citing Matter of Walsh v Police Comr. (159 NYS2d 6 [per McGivern, J.]). The facts in this matter distinguish the holding in that case, however. Had petitioners not voluntarily removed themselves from list No. 8155 by accepting Transit Authority positions, there might be some force to an analogy to Walsh, who was deliberately passed over three times without any explanation for his being deemed unsatisfactory. This is not such a case, however. Petitioners point to no action of the police department proper in the alleged fraudulent inducement, but only point to solicitations from Transit Authority personnel (and in one case, the mere opinion of a police department investigator, given without any assertion of apparent authority). As such, the allegations make out neither a continuing wrong nor, so far as we can see, any wrong on the part of either the police department or the city, generally. Since the relief sought is so specifically aimed at having these respondents (as opposed to respondent Transit Authority) act, and since these respondents did not act at all, much less arbitrarily or capriciously, the petition should also have been dismissed on the merits, i.e., for failure to state a cause of action. Lastly, we note that while petitioners obviously prefer police department appointments over their present jobs with the Transit Authority force, it is difficult to see what tangible harm they have suffered. Pay, pension and benefits are comparable among the two forces, with even the uniforms being of the same hue. Whatever perceived difference in status motivates them is insufficient, in equity, to outweigh the extreme prejudice the Transit Authority would suffer in losing 24 patrolmen who have already been through five months of training. In fact, the equities just point up the sensibleness of the four-month Statute of Limitations and support respondent’s further argument of laches. Concur — Ross, Carro, Fein and Kassal, JJ.