Submitted - November 27, 2017
Marshall, Brooklyn, NY, appellant pro se.
E. CHAMBERS, J.P. SHERI S. ROMAN ROBERT J. MILLER COLLEEN D.
DECISION & ORDER
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.
that the judgment is affirmed, without costs or
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.
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,
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.).
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 ...