Ruskin v. Ward , 561 N.Y.S.2d 241 ( 1990 )

Judgment, Supreme Court, New York County (David B. Saxe, J.), entered January 27, 1989, dismissing petitioner’s CPLR article 78 petition, unanimously affirmed, without costs.

Petitioner, a police officer since 1982, passed an examination for promotion to police sergeant. After interviewing the petitioner and considering his personnel and medical records, the Police Department Personnel Review Board voted unanimously not to promote petitioner to the rank of sergeant.

It is well established that the appointing officer of a city agency has broad discretion to select individuals for civil service appointment and promotion (Matter of Cassidy v Municipal Civ. Serv. Commn., 37 NY2d 526). The courts will not interfere with the exercise of that discretion unless there is evidence of arbitrary or unlawful conduct by the appointing officer (Matter of Delicati v Schechter, 3 AD2d 19), a showing not made on this record. Although not required to do so (Matter of Chikofsky v Thompson, 22 AD2d 782), the respondents have demonstrated that certain aspects of the petitioner’s personnel record (e.g., excessive sick leave and civilian complaints of excessive force) provided a rationale basis for the Police Commissioner’s determination not to promote petitioner to the rank of sergeant (Matter of Schmitt v Kiley, 124 AD2d 661, lv denied 69 NY2d 612). Concur—Kupferman, J. P., Sullivan, Carro, Milonas and Smith, JJ.