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In re Application of Duverney

Supreme Court, New York County

August 15, 2017

In the Matter of the Application of Sadia Duverney, Petitioner,
City of New York and New York City Administration for Children's Services, Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

          For Petitioner: Kreisberg & Maitland LLP, New York, New York.

          For Respondents: Corporation Counsel, New York, New York.

          ARLENE P. BLUTH, J.

         Respondents' cross-motion to dismiss the petition is denied and respondent is directed to answer pursuant to the CPLR.


         This proceeding arises out of petitioner's former employment as a child protective specialist for respondent New York City Administration for Children's Services ("ACS"). Petitioner began working for ACS in August 2016 as a probationary employee. On September 2, 2016, petitioner was arrested for, inter alia, criminal mischief in Queens in connection with a domestic dispute with her ex-boyfriend. Petitioner claims that she told her supervisor verbally about the incident on September 6, 2016. After being told that she was required to inform ACS about the incident in writing, petitioner emailed the ACS agency commissioner on September 7, 2016 about the arrest.

         Because of the arrest, Petitioner was fired on September 22, 2016. Less than a month later, on October 20, 2016, all charges against petitioner in connection with the September 2 incident were dismissed. Petitioner requested, on November 2, 2016, that she be reinstated to her position but respondents failed to respond to this request. Petitioner commenced the instant proceeding to be reinstated to her position.

         In support of the cross-motion to dismiss, respondents insist that there was a rational basis to fire petitioner because she was a probationary employee- petitioner could have been terminated for any reason as long as it was not in bad faith. Respondent observes that Ms. Joan Cleary (ACS Borough Commissioner) recommended that petitioner be terminated because she failed to adhere to an acceptable standard of conduct even though, on the record developed in this early stage of the proceeding, there is no indication that Ms. Cleary ever spoke to petitioner, saw an arrest report or had any knowledge other than the self-reported arrest. Respondents maintain that firing a probationary employee after an arrest is not indicative of bad faith even if the employee is later acquitted or all charges are dismissed.

         Petitioner insists that respondents' basis for petitioner's termination are the criminal charges that were later dismissed. Petitioner contends that false assumptions cannot support a finding that respondents' determination was rational.


         "On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756');">842 N.Y.S.2d 756 [2007] [internal quotations and citation omitted]).

         In an article 78 proceeding, "the issue is whether the action taken had a rational basis and was not arbitrary and capricious" (Ward v City of Long Beach, 20 N.Y.3d 1042, 1043, 962 N.Y.S.2d 587');">962 N.Y.S.2d 587 [2013] [internal quotations and citation omitted]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (id.). "If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable" (id.). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833');">356 N.Y.S.2d 833 [1974]).

         "A probationary employee may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that her termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law" (Matter of Turner v Horn, 69 A.D.3d 522, 522, 893 N.Y.S.2d 58');">893 N.Y.S.2d 58 [1st Dept 2010]).

         As respondents point out, there is case law that may be read for the proposition that a probationary employee can be fired after an arrest even if the charges are later dropped; however, those cases cited by respondents are distinguishable. For example, respondents rely on Matter of Rivera v New York City Dept. of Sanitation (142 A.D.3d 463, 464-65, 36 N.Y.S.3d 464');">36 N.Y.S.3d 464 [1st Dept 2016]). That case involved a probationary sanitation truck driver who was arrested for DWI and "[h]is commercial driver's license, a requirement for a sanitation worker, was suspended and then revoked as a result [of the arrest]. Several disciplinary complaints were filed as a result of this incident and he was subsequently terminated" (id. at 464). The instant petitioner, unlike the ...

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