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In re Marshall

Supreme Court of New York, Second Department

April 4, 2018

In the Matter of Evan Marshall, appellant,
v.
Dina Simon, etc., et al., respondents. Index No. 12266/15

          Submitted - November 27, 2017

          D55003 L/htr

          Evan Marshall, Brooklyn, NY, appellant pro se.

          CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN ROBERT J. MILLER COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Correction dated June 12, 2015, which terminated the petitioner's probationary employment as a correction officer, the petitioner appeals from a judgment of the Supreme Court, Queens County (Leslie J. Purificacion, J.), entered May 16, 2016, which denied the petition and dismissed the proceeding.

         ORDERED that the judgment is affirmed, without costs or disbursements.

         The petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Correction which terminated his probationary employment as a correction officer. The petitioner alleged, among other things, that his probationary period had ended prior to his termination, and that he was therefore entitled to certain protections under the Civil Service Law, which were not provided. In the judgment appealed from, the Supreme Court denied the petition and dismissed the proceeding.

         A probationary employee may "be dismissed for almost any reason, or for no reason at all" (Matter of Venes v. Community School Bd. of Dist. 26, 43 N.Y.2d 520, 525; see Matter of Duncan v Kelly, 9 N.Y.3d 1024, 1025; Matter of Swinton v. Safir, 93 N.Y.2d 758, 762-763; Matter of Mathis v New York State Dept. of Correctional Servs., 81 A.D.3d 1435, 1436). "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law" (Matter of Lane v City of New York, 92 A.D.3d 786, 786; see Matter of Johnson v County of Orange, 138 A.D.3d 850, 851).

         An employee's probationary term may be extended by the number of days that the probationary employee does not perform the duties of the position (see 4 NYCRR 4.5[g]; Matter of Beck v. Walker, 286 A.D.2d 996, 996-997; Matter of Sheffield v. Howe, 223 A.D.2d 544, 544-545; see also Personnel Rules and Regs of City of New York [55 RCNY] § 5.2.8; NYC Dept of Corr Rule 3.30.020[b]). "The purpose of excluding from the probationary term periods during which a probationer is not at work performing his or her duties is not punitive, but rather is the same as that underlying a probationary term in the first instance" (Tomlinson v Ward, 110 A.D.2d 537, 538, affd 66 N.Y.2d 771). "It is designed to enable the appointing officer to ascertain the fitness of the probationer and to give the probationer a reasonable opportunity to demonstrate the ability to perform the duties of the office" (id. at 538). "The period should be measured by the number of days a probationer is actually working at the job" (id.).

         Here, the record demonstrates that the petitioner's probationary period was properly extended for 25 days to reflect his absences from work (see 4 NYCRR 4.5[g]; Personnel Rules and Regs of City of NY [55 RCNY] § 5.2.8; NYC Dept of Corr Rule 3.30.020[b]; see also Matter of Garcia v. Bratton,90 N.Y.2d 991, 993-994; Matter of Smith v New York City Dept. of Correction,292 A.D.2d 198, 198). The petitioner's termination therefore occurred while he was a probationary employee (see Matter of Ortiz v Manhattan Psychiatric Ctr.,27 A.D.3d 310, 310; Matter of Skidmore v. Abate,213 A.D.2d 259, 259-260; Matter of Rivoli v. Stern,160 A.D.2d 601; Tomlinson v. Ward, 110 A.D.2d at 538). Since the petitioner did not demonstrate, or even adequately allege, that he was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation ...


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