McAnulty v. Fire Dep't of N.Y.

66 Misc.3d 400

115 N.Y.S.3d 631

In the Matter of the Application of Stephen MCANULTY, Petitioner,

v.The FIRE DEPARTMENT OF the CITY OF NEW YORK, Daniel A. Nigro, Commissioner of the Fire Department of the City of New York, and the City of New York, Respondent.

502766/2018

Supreme Court, Kings County, New York.

Decided on November 8, 2019

Attorney for Petitioner: Philip H. Seeling, Esq., 299 Broadway, Suite 1600, New York, NY 10007

Attorney for Respondent: Zachary W. Carter, Corporation Counsel of the City of NY, 100 Church Street, New York, NY 10007, Of Counsel: Ryan G. Shaffer, Esq., Maxwell Leighton, Esq.

Katherine A. Levine, J.

This case addresses the issue of whether the Fire Department of the City of New York ("FDNY" or "respondent") acted arbitrarily and capriciously when it denied Stephen McAnulty ("plaintiff" or "Mcanulty") reinstatement eight years after he resigned. Plaintiff was appointed by the FDNY in May 2003 and resigned on April 8, 2009, the same day he pled guilty to the felony charge of making false statements to agents and representatives of the FBI and Antitrust Division of the Justice Department. On January 15, 2013, the court sentenced him to three years of probation. In May 2016, the NYS Department of Corrections and Community Supervision issued petitioner a Certificate of Good Conduct.

Petitioner claims that on March 1, 2010, he submitted a timely request for reinstatement to the former Fire Commissioner Salvatore Cassano,¹ but that he did not receive a response from the FDNY for seven years. He therefore followed up with another letter dated September 20, 2017 requesting reinstatement. In June 2017, the FDNY denied McAnulty's request, stating that he could not be considered for reinstatement eight years since his resignation because of the four year limit on reinstatement set forth in the Personnel Rules and Regulations of the City of New York ("PRR"), 55 RCNY § 6.2.3(a). Pursuant to § 6.2.3(a), reinstatement must be accomplished within a period of time equivalent to the time the employee has actually served in the civil service of New York City, but in no event shall such period for reinstatement be less than one year nor more than four years from the date of resignation or retirement.

Petitioner argues that the FDNY is at fault for taking over seven years to respond to his March 1, 2010 request, and is therefore barred from denying him reinstatement. Petitioner also pointed to his commendable life of dedicated public service and submitted several letters of recommendation from his supervisors and superiors at the FDNY and the U.S. Military Academy at West Point, where he was an assistant soccer coach.

Pursuant to the PRR (55 RCNY Appendix A) § 6.2.1(a) and (b), a city employee who has resigned from a permanent position may be reinstated with the approval of the head of the agency (in this case the Commissioner of the FDNY) only if the "separation from employment was without fault or delinquency on the employee's part and the head of the agency to whom the employee has applied for such reinstatement is willing to reinstate the employee." Regardless of petitioner's commendable service as a firefighter and the statements submitted by his colleagues and former superiors supporting him, petitioner's guilty plea is an acknowledgment of his own wrongdoing and fault, and he was therefore not entitled to reinstatement pursuant to § 6.2.1(a). See , Vrettos v. City of New York , 2011 N.Y. Slip Op. 30536(U), 2011 WL 939266, 2011 N.Y. Misc. LEXIS 909, *8 (Sup. Ct. N.Y. Co. 2011). Furthermore, pursuant to Public Officers Law ("POL") § 30(1)(e), when public officers, including fire fighters for the FDNY, are convicted of a felony, their position becomes vacant. A "conviction" is defined to include "entry of a plea of guilty." Criminal Procedure Law ("CPL") § 1.20 (13) ; Gunning v. Codd , 49 N.Y.2d 495, 499, 427 N.Y.S.2d 209, 403 N.E.2d 1208 (1980). See also , Braun v. City of New York , 284 F. Supp. 3d 572, 577 (S.D.N.Y. 2018) (a guilty plea to a felony automatically terminates member's employment with the FDNY).

An individual who has been convicted may apply for reinstatement only "upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy." POL § 30(1)(e). There is no evidence that petitioner's voluntary guilty plea was vacated. Accordingly, the FDNY is legally barred from reinstating him and his letter seeking reinstatement was of no legal consequence. See, Stimpfle-Jones v. Jones , 124 A.D.2d 869, 869, 508 N.Y.S.2d 635 (3d Dept. 1986) (since statute prohibited the marriage of an inmate serving a sentence of life imprisonment, purported marriage of inmate was deemed a "legal nullity"). Thus, the perceived timeliness of petitioner's request for reinstatement and the seven year delay in the FDNY's response is of no moment in this court's determination as to the propriety of the FDNY's denial.

Pursuant to CPLR § 7803(3), the court must ascertain whether an agency's determination was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including...