INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2017. Petitioner

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x GREGORY TERNLUND, Petitioner for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules VERIFIED PETITION IN SUPPORT OF ORDER TO SHOW CAUSE - against - Index No.:153490/2017 DANIEL A. NIGRO, AS THE FIRE COMMISSIONER OF THE CITY OF NEW YORK; THE NEW YORK CITY FIRE DEPARTMENT; AND DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents x TO THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK: The Petition of GREGORY TERNLUND, Petitioner herein, by his attorney, ROBERT B. KRONENBERG, respectfully alleges and shows this Court as follows: I. PRELIMINARY STATEMENT 1. I am the attorney for the Petitioner, GREGORY TERNLUND ( Mr. Ternlund or Petitioner ) in the above-entitled action and as such, I am fully familiar with the facts and circumstances surrounding this case. 2. I submit this Verified Petition in support of Petitioner s Order to Show Cause seeking an Order of this Court pursuant to Article 78 of the C.P.L.R granting Petitioner the 1 1 of 10

2 following relief: a. That Respondents DANIEL A. NIGRO, AS THE FIRE COMMISSIONER OF THE CITY OF NEW YORK; THE NEW YORK CITY FIRE DEPARTMENT; AND DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES restore Petitioner s New York City residency credit for Exam # 2000 for the position of New York City Firefighter ( firefighter ) and restore Petitioner to his original list number of ; and b. Such other and further relief as may be just, proper, and equitable. II. STATEMENT OF FACTS 3. Petitioner s current residence is 425 Beach 119 Street, Rockaway Park, New York, County of Queens, Petitioner resided at 425 Beach 119 Street, Rockaway Park, New York, County of Queens, between July 1, 2010 and June 30, Petitioner s date of birth is March 28, He is twenty-six (26) years of age. 6. Upon information and belief, Respondent, Daniel A. Nigro ( Respondent or Fire Commissioner ), as the Fire Commissioner of the City of New York is the appointed head of the New York City Fire Department maintaining an office within the County of Kings, State of New York. 7. Upon information and belief, Respondent, New York City Fire Department (the FDNY or Respondent ), is a municipal agency organized and existing pursuant to the laws of the City and State of New York, maintaining an office in the County of Kings, State of New York. 2 2 of 10

3 8. Upon information and belief, Respondent, Department of Citywide Administrative Services (hereinafter DCAS or Respondent ) is a municipal agency organized and existing pursuant to the laws of the State of New York, maintaining an office in the County of New York, State of New York. 9. Petitioner is a candidate for the position of firefighter on Exam # Petitioner applied for and received New York City residency credit. 11. By Notice to DCAS to Withdraw Claimed Credit dated February 24, 2017, the New York City Fire Department ( FDNY ), Bureau of Human Resources, Candidate Investigation Division notified the DCAS that Petitioner did not provide satisfactory documentation showing proof of NYC residency covering the period July 1, 2010 to June 30, The FDNY s assertion is false. (Please find a copy of the Notice to DCAS to Withdraw Claimed Credit dated February 24, 2017 attached hereto as Exhibit A ). 12. The Notice to DCAS to Withdraw Claimed Credit dated February 24, 2017 stated in relevant part, The candidate failed to provide satisfactory documentation showing proof of NYC residency, covering the period of July 1, 2010 to June 30, Documentation that is acceptable proof of NYC residency is described in the Notice of Examination (NOE) and in the FDNY document entitled Alternative NYC Residency Credit Documents. 13. By notice dated March 15, 2017, DCAS notified Petitioner that his residency credit was being removed. This notice further informed Petitioner that his list number on Exam # 2000 was changed from to As a result of this arbitrary and capricious action, Petitioner moved down 11,172 names on the list. (Please find a copy of the DCAS notice to Petitioner dated March 15, 2017 attached hereto as Exhibit B ). 3 3 of 10

4 14. Petitioner provided voluminous documentation to the FDNY, which documentation proved Petitioner resided at 425 Beach 119 th Street, Rockaway Park, New York, County of Queens, between July 1, 2010 and June 30, Petitioner provided this documentation pursuant to the information provided to him in the Notice of Examination 1 for the position of firefighter and in the Alternative NYC Residency Credit Documents form. The Notice of Examination for the position of firefighter and the Alternative NYC Residency Credit Documents form provide a list of documents that the FDNY will consider when evaluating whether or not to award New York City residency credit to a candidate. (Please find a copy of the Notice of Examination for the position of firefighter and the Alternative NYC Residency Credit Documents form attached hereto respectively as Exhibits C and D ). 15. Petitioner provided the following documentation to the FDNY proving he resided at 425 Beach 119 th Street, Rockaway Park, New York, County of Queens, between July 1, 2010 and June 30, 2011: (1) Savings account information from Wachovia Bank(attached hereto as Exhibit E ): (2) Account information from Wells Fargo (attached hereto as Exhibit F ); (3) Verizon landline phone bills (attached hereto as Exhibit G ); (4) T-Mobile cell phone bills (attached hereto as Exhibit H ); (5) Discover card invoices in addition to a letter from Discover indicating that Petitioner s mother, Linda Ternlund was added to Petitioner s account on April 12, 2008 as an authorized buyer (attached hereto as Exhibit I ); (6) Invoices from Channel Oil, Inc., a utility company (attached hereto as Exhibit J ); (7) Petitioner s parents (Stephen and Linda Ternlund) tax returns for 2010 and 2011 (attached hereto as Exhibit K ) and (8) Rutgers s University Invoices (attached hereto as Exhibit L ). All of this documentation is listed on the 1 See page three (3) of the Notice of Examination. 4 4 of 10

5 Notice of Examination for the position of firefighter and/or on the Alternative NYC Residency Credit Documents form as acceptable documentation to prove New York City residency. 16. In addition to the documentation listed in paragraph numbered 15 above, Petitioner submitted letters dated December 19, 2016, July 26, 2016 and August 2, 2016 to the FDNY. Petitioner drafted and submitted these letters in response to the FDNY s inquiries regarding his residence. These letters provided the FDNY with further unequivocal proof of New York City residence for the period July 1, 2010 and June 30, (Please find a copy of the letters dated December 19, 2016, July 26, 2016 and August 2, 2016 attached hereto collectively as Exhibit M ). 17. Petitioner s father, Stephen F. Ternlund, retired from the FDNY in the rank of Battalion Chief after over forty-three (43) years of service. 18. By signed and notarized statement dated February 7, 2017, Petitioner s father, notified the FDNY that Petitioner lived with him at 425 Beach 119 Street, Rockaway Park, NY for the four (4) years he attended college from the Fall of 2009 through the Spring of The FDNY disregarded this sworn statement. (Please find a copy of Stephen F. Ternlund s sworn statement dated February 7, 2017 attached hereto as Exhibit N ). 19. Upon information and belief, the FDNY questioned Petitioner about purchases made in New Jersey on his Discover credit card between July 1, 2010 to June 30, By signed and notarized statement dated February 13, 2017, Petitioner s mother, Linda Ternlund, notified the FDNY that she was an authorized purchaser on Petitioner s Discover credit card account and that the purchases in question were hers. Petitioner was an authorized purchaser on this credit card to help Petitioner build good credit. Petitioner did not make the transactions in question, some of 5 5 of 10

6 which included, homeowner s insurance, a membership in Classmates.com, a subscription to Redbook, a women s magazine and grocery purchases. (Please find a copy of Linda Ternlund s sworn statement dated February 13, 2017 attached hereto as Exhibit O ). 20. Firefighter Exam # 2000 is due to expire on June 26, Once Exam # 2000 expires, all of the candidates remaining on the list for this exam are no longer eligible for appointment to the position of firefighter from this list. 21. Upon information and belief, the FDNY will be swearing in only one (1) more class of firefighters from Exam # 2000, due to the impending expiration of this list. Upon information and belief, the next and final firefighter class will be sworn in on or about May 5, If Respondents do no restore Petitioner s New York City residency credit, he will not be appointed as a firefighter from Exam # 2000 and will die on the list. 22. The Respondents arbitrary and capricious decision to remove Petitioner s New York City residency credit resulted in his moving down 11,172 names on the current firefighter list. 23. As a result of Respondents arbitrary and capricious decision to remove Petitioner s New York City residency credit he will suffer irreparable harm, as his name will not be reached for the next and final firefighter class, thus, he will forever be precluded from being appointed as a firefighter from Exam # Petitioner s proper list number with the New York City residency credit is This list number has already been reached, thus, if Petitioner retained this list number, he would be appointed to the next firefighter class as he passed every portion of the processing for the position of firefighter. 6 6 of 10

7 III. ARGUMENT Petitioner Provided Voluminous and Appropriate Documentation to Respondents Pursuant to the Notice of Examination 2 for the Position of Firefighter and in the Alternative NYC Residency Credit Documents Form Unequivocally Establishing his New York City Residency for the Period July 1, 2010 and June 30, 2011 and Respondents Decision to Remove Petitioner s New York City Residence Credit Resulting in his Moving Down 11, 172 Names on the list for Firefighter Exam # 2000 was Irrational and Arbitrary and Capricious 25. The Notice of Examination for the position of firefighter and the Alternative NYC Residency Credit Documents form provides firefighter candidates with a list of documents accepted by the FDNY to prove a candidate s New York City residence. As aforementioned, Petitioner submitted voluminous documentation to the FDNY pursuant to the information provided to him in the Notice of Examination for the position of firefighter and the Alternative NYC Residency Credit Documents form. This documentation proved Petitioner resided at 425 Beach 119 th Street, Rockaway Park, New York, County of Queens, between July 1, 2010 and June 30, Further, Petitioner s parents, Stephen F. Ternlund, FDNY Battalion Chief, Ret., and Linda Ternlund, provided sworn affidavits further indicating that Petitioner resided at425 Beach 119 th Street, Rockaway Park, New York, County of Queens, between July 1, 2010 and June 30, (Please find a copy of the Stephen F. Ternlund and Linda Ternlund affidavits attached hereto respectively as Exhibits P and Q ). 27. Respondents disregarded clear and unequivocal proof of Petitioner s New York City residence by improperly and illegally removing Petitioner s residency credit. Because of 2 See page three (3) of the Notice of Examination. 7 7 of 10

8 Respondents arbitrary and capricious action, Petitioner moved down 11,172 names on the current firefighter list on Exam # 2000 from list # to list # Respondents arbitrary and capricious action resulted in irreparable harm to Petitioner. In this regard, Exam # 2000 is due to expire on June 26, Once Exam # 2000 expires, all of the candidates remaining on the list for this exam, including Petitioner, are no longer eligible for appointment to the position of firefighter from this list. In sum, such candidates, including Petitioner will die on the list. 29. Upon information and belief, the New York City Fire Department will swear in only one (1) more class of firefighters from Exam # 2000, due to the impending expiration of this list. Upon information and belief, the next and final firefighter class will be sworn in on or about May 5, If Respondents do no restore Petitioner s New York City residency credit prior to May 5, 2017 or whatever date the next class is sworn in, he will not be appointed as a firefighter from Exam # 2000 and will die on the list. Conversely, if Respondents restore Petitioner s New York City residency credit, his proper list number will be reached and he will be appointed as a firefighter from the list for Exam # Petitioner s proper list number with the New York City Residency credit is This list number has already been reached, thus, if Petitioner retained this list number, he would be appointed to the next firefighter class as he passed every portion of the processing for the position of firefighter. 30. Due to the impending expiration date of Exam # 2000 and due to the likelihood that the next and final firefighter calls from Exam # 2000 will be sworn in on May 5, 2017, it is critical that Respondents restore Petitioner s New York City residency credit immediately. 8 8 of 10

9 31. Respondents decision to remove Petitioner s New York City Residency credit was made in bad faith and was irrational and arbitrary and capricious. 32. As a result of Respondents irrational and arbitrary and capricious decision, Petitioner moved down 11,172 names on the list for Firefighter Exam # As a result of Respondents irrational and arbitrary and capricious decision, Petitioner will suffer irreparable harm, as Petitioner s new list number will not be reached prior to the impending expiration of the list for Firefighter Exam # The Petitioner has no adequate remedy at law other than a judgment granting the relief requested herein and in the Order to Show Cause. 35. No previous application has been made for the relief requested herein. 36. The Petitioner herein is the party aggrieved by the aforesaid determination. WHEREFORE, Petitioner, GREGORY TERNLUND, respectfully requests judgment pursuant to Article 78 of the CPLR (1) annulling, vacating, reversing and setting aside the determination of the Respondents, DANIEL A. NIGRO, AS THE FIRE COMMISSIONER OF THE CITY OF NEW YORK; the FIRE DEPARTMENT OF THE CITY OF NEW YORK and the DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES dated March 15, 2017 which determination removed Petitioner s New York City residency credit resulting in his list number on Exam # 2000 changing from to ; (2) that Respondents DANIEL A. NIGRO, AS THE FIRE COMMISSIONER OF THE CITY OF NEW YORK; THE NEW YORK CITY FIRE DEPARTMENT; AND DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES restore Petitioner s New York City residency credit for Exam # 2000 for the position of New York City Firefighter ( firefighter ) and restore Petitioner to his 9 9 of 10

10 original list number of and (3) such other and further relief as may be just, proper, and equitable. Dated: Islandia, New York April 15, 2017 Yours, etc., Robert B. Kronenberg ROBERT B. KRONENBERG, ESQ. Attorney for Petitioner 1355 Motor Parkway Islandia, New York ll749 (631) TO: NYC Fire Department Bureau of Legal Affairs 9 Metrotech Center Brooklyn, NY NYC Fire Department Mr. Daniel A. Nigro, Fire Commissioner 9 Metrotech Center Brooklyn, NY Department of Citywide Administrative Services 100 Centre Street New York, NY of 10