FDNY EMT Loses Suit Over Hiring Age For Promotion to Firefighter

An FDNY EMT who was rejected for a promotion to firefighter because he was 8 weeks too old, has lost his bid to have a court order him appointed to the fire academy. Charles J. McCloskey was hired by FDNY as an EMT in April, 2012. He passed the promotional exam for firefighter in December 2016 and was placed on the “eligible to hire list” in May, 2017.

In September, 2017, McCloskey was informed he “may” have been “overage at the time of filing” to take the exam. In December 2017, he was formally notified he had been disqualified because he was “overage at the time of filing”.

McCloskey filed a series of administrative appeals with civil service and but when those proved unfruitful, he filed an Article 78 special proceeding in New York County Supreme Court, alleging the city’s decision was arbitrary, capricious, and an abuse of discretion. In particular, McCloskey claimed a local law, identified in the decision as Local Law 38, increased the maximum age of firefighter applicants from 28 to 36.

An Article 78 proceeding is unique to New York. As explained by the Judge Eileen A. Rakower from the New York Supreme Court:

  • Article 78 proceedings exist for the relief of parties personally aggrieved by governmental action.
  • Judicial review is limited to questions expressly identified by CPLR 7803.
  • One such question is whether a 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 abuse of discretion as to the measure or mode of penalty or discipline imposed.
  • [I]t is settled that in a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious.
  • An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts.
  • Petitioner has failed to demonstrate that Respondents’ Decision was arbitrary and capricious.
  • Respondents’ denial of Petitioner’s Appeal and disqualification of Petitioner’s promotion to FDNY Firefighter was rationally based on Local Law 38.
  • Local Law 38 increases the maximum age to apply as a FDNY Firefighter, from 28 years old to 36 years old.
  • Local Law 38 clearly states that it applies to the first open competitive or promotional exam, which were both held in 2012.
  • Petitioner took the second promotional examination after he reached his 29th birthday. Petitioner fails to meet his burden of demonstrating that the Respondents’ denial of Petitioner’s appeal and disqualification should be disturbed by the Court. [internal quotations removed]

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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