Opinion
2022-00288 Index 150665/17
01-18-2022
In the Matter of Gil V. Perez, Petitioner-Appellant, v. The New York City Civil Service Commission, et al., Respondents, Zachary Carter as Counsel to the City of New York, Respondent-Respondent. Appeal No. 15073 Case No. 2020-03504
Bergstein & Ullrich, New Paltz (Stephen Bergstein of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Claibourne Henry of counsel), for respondent.
Bergstein & Ullrich, New Paltz (Stephen Bergstein of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Claibourne Henry of counsel), for respondent.
Before: Renwick, J.P., Webber, Oing, Scarpulla, Pitt, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered August 4, 2020, which denied the petition to annul the determination of respondent New York City Civil Service Commission (Commission), dated September 21, 2016, upholding the disqualification of petitioner and termination of his employment by respondent New York City Department of Citywide Administrative Services (DCAS), and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner failed to establish that the Commission's determination to uphold DCAS's decision to disqualify him and terminate his employment from his position as a stationary engineer lacks a rational basis or is arbitrary and capricious (see Matter of Martin v Marchiselli, 262 A.D.2d 171 [1st Dept 1999]). DCAS rationally determined that petitioner committed fraud in his employment application by providing answers to questions under penalties of perjury that were not truthful, i.e., that he never resigned from a previous job to avoid disciplinary action or dismissal, and that this information, if known to DCAS prior to petitioner's appointment, would have warranted his disqualification (Civil Service Law § 50[4]; see Matter of Martin, 262 A.D.2d 171).
Petitioner's argument that DCAS violated Civil Service Law § 50(4), which generally prohibits a municipal agency from revoking the certification of an employee more than three years after appointment from a civil service list, is unavailing since that provision does not apply in the case of fraud (Civil Service Law § 50[4]; see Matter of Crossfield v Schuyler County, 151 A.D.3d 1448, 1450 [3d Dept 2017], lv denied 30 N.Y.3d 905 [2017]; Matter of Angelopoulos v New York City Civ. Serv. Commn., 176 A.D.2d 161 [1st Dept 1991] , lv denied 79 N.Y.2d 751 [1991]).