Panek v. City of Syracuse , 689 N.Y.S.2d 899 ( 1999 )

Order unanimously affirmed without costs. Memorandum: Plaintiff, who is a member of Local Union 400 of the American Federation of State, County and Municipal Employees, alleges in the complaint that he was denied promotion to a competitive Civil Service position outside his bargaining unit in violation of section 6.5 of the collective bargaining agreement. That section does not apply to him, however, and thus Supreme Court properly granted the motion of defendants City of Syracuse, City of Syracuse Police Department and Richard Becker, individually and in his official capacity, to dismiss the complaint. Furthermore, it is well settled that a person who passes a Civil Service examination and is on a list of eligible candidates “does not acquire any legally protectable interest’ in an appointment to the position for which the examination was given” (Matter of Andriola v Ortiz, 82 NY2d 320, 324, cert denied sub nom. Andriola v Antinoro, 511 US 1031, quoting Matter of Cassidy v Municipal Civ. Serv. Commn., 37 NY2d 526, 529). Indeed, such eligible candidates “ ‘can assert at most the right to consideration for and a “hope” of appointment’ ” (Matter of Deas v Levitt, 73 NY2d 525, 532, cert denied 493 US 933).

Plaintiffs further contention that the complaint is based on an alleged violation of section 6.2.4 of the collective bargaining agreement is raised for the first time on appeal and, in any event, lacks merit. That section applies to noncompetitive Civil Service positions, and plaintiff was denied a competitive position. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Dismiss Pleading.) Present — Green, J. P., Pine, Wisner, Scudder and Callahan, JJ.