Wood v. Irving , 605 N.Y.S.2d 799 ( 1993 )

Judgment affirmed without costs. Memorandum: Supreme Court properly granted the petition, brought pursuant to CPLR article 78, in which petitioner sought appointment as a detective and commensurate compensation. Civil Service Law § 58 (4) (c) provides that "[a]ny person who has received permanent appointment as a police officer and is temporarily assigned to perform the duties of a detective shall, whenever such assignment exceeds 18 months in duration, be appointed as a detective and receive the compensation ordinarily paid to a detective performing such duties.” Petitioner established that he had been permanently appointed as a police officer and had been assigned detective duties for a period exceeding 18 months.

Respondents contend that Civil Service Law § 58 (4) (c) is unconstitutional because it provides for promotion without a competitive examination. We do not agree. " 'Every legislative enactment carries a strong presumption of constitutionality including a rebuttable presumption of the existence of necessary factual support for its provisions’ ” (Birkeland v State of New York, 98 AD2d 395, 398, affd 64 NY2d 663, quoting Defiance Milk Prods. Co. v Du Mond, 309 NY 537, 540-541). A court will strike a statute for unconstitutionality only as a last resort, and " 'only when unconstitutionality is shown beyond a reasonable doubt’ ” (Defiance Milk Prods. Co. v Du Mond, 309 NY, supra, at 541).

Article V, § 6 of the New York Constitution provides that "[appointments and promotions in the civil service of the state * * * shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive”. "Practicability denotes the ability to objectively and 'fairly test the relative capacity and fitness of the applicants to discharge the duties of the service to which they seek appointment’ ” (Matter of Condell v Jorling, 151 AD2d 88, 93). In enacting Civil Service Law § 58 (4) (c), the Legislature recognized that testing for the position of detective, after an officer has served in that capacity for a period in excess of 18 months, is not practicable, and that the capacity and fitness of a police officer to serve as a detective can better be assessed by a review of the officer’s extended period of on-the-job performance (see, Bill Jacket, L 1990, ch 29).

We also conclude that the statute is not superseded by the parties’ collective bargaining agreement because that agreement did not address the promotion of an officer to detective after extended service as a detective. Additionally, the proceeding is not time-barred. Petitioner commenced this proceeding within two months after respondents’ refusal was conclusive and binding (see, Matter of Edmead v McGuire, 67 NY2d 714, 716; see also, CPLR 217 [1]).

All concur except Lawton and Davis, JJ., who dissent and vote to reverse in the following Memorandum.