Trotta v. Kirwan

47 A.D.2d 685, 364 N.Y.S.2d 236, 1975 N.Y. App. Div. LEXIS 8918

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1975
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court at Special Term,' entered March 22, 1974 in Albany County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, seeking a direction that respondent promote them in rank pursuant to a civil service eligibility list. Petitioned were both on the eligibility list for promotion to the rank of lieutenant in the Division of State Police. The list was established on May 28,. 1971 and" expired on May 28, 1973. During this period, they eventually, rose, from numbers 19 and 20 on said list to numbers one and two. Thereafter, but prior to the expiration of the list,-at leást one .vacancy occurred in that rank, yet neither petitioners nor any other eligible member' of- the division received a promotional appointment. Their failure "to receive such an appointment is challenged in-this proceeding as arbitrary, capricious and unlawful. We agree with Special Term that there are.no factual issues raised by the pleadings in this case. Bare concluso.ry statements in a petition supported only by hearsay allegations' by a person not a party to the proceeding are .insufficient (Hood v. Murray, 25 AD 2d 163; Matter of Delicati v. Scheehtef, 3 AD 2d 19). Furthermore, under the circumstances presented here, a court will not encroach upon the power of appointing officials to exercise their discretion (Executive Law, § 211). Judgment affirmed, without costs. Herlihy, P. J., Greenblott, Sweeney, Kane and Larkin, JJ., concur.