Bruno v. Greenville Fire Dist., 2015–12159

• Decision Date: 24 April 2019
• Docket Number: Index No. 1152/14,2015–12159
• Citation: 98 N.Y.S.3d 619,171 A.D.3d 1169
• Parties: In the Matter of Matthew BRUNO, Appellant, v. GREENVILLE FIRE DISTRICT, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1169

98 N.Y.S.3d 619

In the Matter of Matthew BRUNO, Appellant,

v.GREENVILLE FIRE DISTRICT, etc., et al., Respondents.

2015–12159

Index No. 1152/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 14, 2019

April 24, 2019

Matthew Bruno, Scarsdale, NY, appellant pro se.

Littler Mendelson, P.C., New York, N.Y. (Joseph E. Field of counsel), for respondents.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Greenville Board of Fire Commissioners of the Greenville Fire District dated September 10, 2013, terminating the petitioner's probationary employment as a firefighter, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Barbara G. Zambelli, J.), dated November 9, 2015. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner was hired as a probationary firefighter by the Greenville Fire District (hereinafter the GFD). Shortly before the expiration of the probationary period, the GFD terminated his employment. The petitioner then commenced this proceeding pursuant to CPLR article 78 to review the determination to terminate his employment. The Supreme Court denied the petition and dismissed the proceeding.

Judicial review of the dismissal of a probationary employee is limited to whether the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 763, 697 N.Y.S.2d 869, 720 N.E.2d 89 ; Matter of Santucci v. City of Mount Vernon, 165 A.D.3d 803, 803–804, 85 N.Y.S.3d 576 ; Matter of Marshall v. Simon, 160 A.D.3d 648, 74 N.Y.S.3d 580 ). Unless the employee raises a material issue of fact as to whether the dismissal was in bad faith, for an illegal reason, or in violation of law, his or her employment may be terminated without a hearing or a statement of reasons (see Matter of Petkewicz v. Allers, 137 A.D.3d 1045, 1046, 27 N.Y.S.3d 263 ; Matter of Ward v. Metropolitan Transp. Auth., 64 A.D.3d 719, 720, 883 N.Y.S.2d 282 ; Matter of Cooke v. County of Suffolk, 11 A.D.3d 610, 611, 783 N.Y.S.2d 392 ). Speculative and/or conclusory allegations of misconduct or unlawfulness are insufficient to meet the employee's burden in this regard (see Matter of Petkewicz v. Allers, 137 A.D.3d at 1046, 27 N.Y.S.3d 263 ; Matter of Hayes v. State of New York, 134 A.D.3d 843, 844, 20 N.Y.S.3d 638 ).

Here, the petitioner failed to raise a material issue as to bad faith or any other improper reason for his termination. The record demonstrates that the termination had a rational basis and that his allegations to the contrary were speculative or conclusory. We note that we have not considered the petitioner's...