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,
Petitioner: Kreisberg & Maitland LLP, New York, New York.
Respondents: Corporation Counsel, New York, New York.
P. BLUTH, J.
cross-motion to dismiss the petition is denied and respondent
is directed to answer pursuant to the CPLR.
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.
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.
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.
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
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 
[internal quotations and citation omitted]).
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  [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 ).
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
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