FDNY Applicant’s Suit Over Residency Determination Tossed Due To Delay in Filing

An applicant to FDNY who was rejected over questions about his residency, has lost a lawsuit to force the city to hire him, because he waited too long to challenge the residency determination. Tyler Cruz-Rivas took the FDNY entrance exam in 2017. According to the decision, applicants were required to have lived in New York City in 2014 and 2015.

On May 9, 2019, FDNY’s Candidate Investigation Division sent Cruz-Rivas a letter informing him that he failed to provide satisfactory proof of residency, and was not eligible for appointment to the department. Four months later in October, 2019, he emailed FDNY requesting that his application be re-evaluated. Quoting from the decision:

  • Apparently, [Cruz-Rivas] went to a private high school in Orange County, New York and his address was listed at his mother’s house in Orange County.
  • He claims that after [FDNY] inquired about this issue, he sent in evidence showing that he lived with his father in Manhattan and commuted to high school every day.
  • He points to E-Z Pass records that purportedly support this claim.
  • [Cruz-Rivas] also claims he sent in a tax return which showed he was a Manhattan resident during the applicable time period.

FDNY responded on October 21, 2019 reaffirming its earlier determination. On March 1, 2021, Cruz-Rivas’ attorney sent a letter requesting reconsideration, to which FDNY responded on March 3, 2021 with a denial. The suit was filed on June 10, 2021.

The city filed a motion to dismiss, contending that Cruz-Rivas waited to long to challenge the residency determination. Cruz-Rivas argued that the statute of limitations began to run on March 3, 2021 since that was the “final” determination. The city argued the final determination occurred on May 9, 2019, or at worst, October 21, 2019.

Quoting from the decision:

  • The Court grants [FDNY’s] cross-motion and finds that the instant proceeding is time-barred.
  • As an initial matter, the Court finds that the statute of limitations began to run on May 9, 2019 when the Candidate Investigation Division sent petitioner a letter stating he had not met the residency requirement.
  • [Cruz-Rivas]’s email request that the FDNY reevaluate his application is dated October 2019, more than four months after he received the notice that he was not eligible.
  • Even assuming that the email response to petitioner on October 21, 2019 restarted the limitations period (rather than merely clarified the reasons for the denial), this case was not commenced until June 10, 2021.
  • It may be that [Cruz-Rivas] could have established that he lived in Manhattan during the applicable time period had he timely submitted the evidence upon which he now relies.
  • But, for some reason, he failed to submit the appropriate documentation along with his initial application or in response to respondents’ October 2019 email.
  • He waited over a year and half to contact respondents again in March 2021 and then waited to file the instant action in June 2021.
  • While the language from [FDNY] in the October 2019 email could have been clearer regarding the denial of [Cruz-Rivas]’s application, there is no basis to find that [he] could wait more than a year to send in the required documentation.
  • The extent to which [Cruz-Rivas] points to the ongoing pandemic and various executive orders does not save this proceeding.
  • The earliest executive order from the governor tolling applicable deadlines was on March 20, 2020, long after the limitations period at issue here expired (even assuming it started on October 21, 2019-the date of [FDNY]’ email).

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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