In re Application of Szipcek
v.
Safir

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentFeb 14, 2002
737 N.Y.S.2d 600 (N.Y. App. Div. 2002)
737 N.Y.S.2d 600291 A.D.2d 269

223

February 14, 2002.

Order and judgment (one paper), Supreme Court, New York County (Stanley Sklar, J.), entered April 28, 2000, which granted respondent's motion to dismiss petitioner's application for failure to state a cause of action, unanimously affirmed, without costs.

ROSEMARY CARROLL, for petitioner-appellant.

JULIAN L. KALKSTEIN, for respondent-respondent.

Before: Nardelli, J.P., Tom, Andrias, Rubin, Buckley, JJ.


The proceeding was properly dismissed on the ground that there is no merit to petitioner's claim that, having been reconsidered for the position of sergeant and promoted thereto, he is entitled to "make-whole relief" in the form of back pay and retroactive seniority. The only remedy for defects in the Civil Service appointment or promotion process is not retroactive appointment or promotion with an award of back pay but reconsideration for appointment or promotion after the defect in the process has been corrected (Matter of Andriola v. Ortiz, 82 N.Y.2d 320, 324-326, cert denied sub nom. Andriola v. Antinoro, 511 U.S. 1031; Matter of Greco v. Department of Personnel, 226 A.D.2d 105). Nor can petitioner's equal protection claim succeed without an allegation that respondent's failure to afford him the interview that they allegedly afford eligibles who, like him, are initially passed over for promotion, was "deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification" (Matter of 303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 693, see also, Snowden v. Hughes, 321 U.S. 1, 8; Kalikow 78/79 Co. v. State of New York, 174 A.D.2d 7, 12-13).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.