In the Matter of Michael Kercado, Appellant, v. Benjamin Ward, as Police Commissioner of the City of New York, et al., Respondents

In the Matter of Michael Kercado, Appellant, v Benjamin Ward, as Police Commissioner of the City of New York, et al., Respondents. [MAJORITY] Order and judgment (one paper), Supreme Court, New York County (Herbert Cahn, J.), entered July 17, 1989, which, inter alia, dismissed petitioner’s CPLR article 78 petition seeking to annul the Police Commissioner’s determination, dated August 31, 1987, denying him promotion to the rank of sergeant, is unanimously affirmed, without costs. The appeal from the order of the same court, entered February 13, 1990, denying petitioner’s motion for leave to reargue, is unanimously dismissed as nonappealable, without costs. Petitioner, who passed an examination for promotion to sergeant and was certified as an eligible candidate for the position, was "passed over” three times by the Commissioner in light of a pending internal investigation into a complaint alleging petitioner’s involvement with drug dealing. The complaint eventually proved to be unfounded and the Commissioner restored petitioner to the eligible list. However, the eligibility list expired shortly thereafter and petitioner was never reconsidered for promotion. The record is devoid of substantive proof supporting petitioner’s claim that the Commissioner’s decision was arbitrary and capricious. The record does not reveal that the complaint involved was either false on its face, or that the Police Department was dilatory in its investigation of the complaint. Moreover, we find the Commissioner’s decision to pass over petitioner for a promotion while the complaint was being investigated was a reasonable exercise of discretion in view of the nature of the complaint. Furthermore, contrary to petitioner’s arguments, the Court of Appeals decision in Matter of Deas v Levitt (73 NY2d 525), which was handed down while this matter was sub judice, is controlling. We have considered petitioner’s remaining points and find them to be without merit. Concur—Kupferman, J. P., Ross, Carro, Asch and Ellerin, JJ.