Cacamese v. Del Castillo
| Decision Date | 30 June 1988 |
| Citation | 531 N.Y.S.2d 471,140 Misc.2d 497 |
| Parties | In the Matter of the Application of Joseph CACAMESE, Petitioner, v. Vincent DEL CASTILLO, as Chief of the New York City Transit Police Department and the New York City Transit Authority, Respondents. |
| Court | New York Supreme Court |
Agulnick and Gogel, New York City, for petitioner.
Albert Cosenza, Brooklyn, for respondents.
This is a CPLR Article 78 proceeding wherein petitioner seeks: (a) reinstatement as a tenured police officer for the New York City Transit Police Department (hereinafter "TPD"); (b) annulment of the determination by respondents terminating his employment; or, in the alternative, (c) an order granting petitioner a hearing to determine whether subject termination of employment was: (1) in violation of lawful procedure; (2) affected by an error of law; (3) arbitrary and capricious; (4) an abuse of discretion; and (5) reasonable and made in good faith.
Petitioner was appointed to the position of probationary police officer for the TPD on July 8, 1985. It is conceded by all parties that such a probationary position only becomes permanent after eighteen (18) months' probationary period. . Petitioner's original eighteen months' probationary term was scheduled to expire on January 8, 1987. However, pursuant to The City of New York Department of Personnel Rules and Regulations of the City Personnel Director (hereinafter "Rules and Regs.") under Rule 5.2.8(a), and upon written consent of petitioner, dated January 5, 1987, , said original probationary eighteen (18) months' term was first extended in writing for an additional six (6) months, ending July 7, 1987, due to petitioner's alleged unsatisfactory record. . During this first extension, petitioner did not perform the regular duties of a police officer for the TPD due to sick leave and restricted duty (petitioner suffered a ruptured appendix), from March 20, 1987, until July 7, 1987, the end of that period aggregating a total of 109 days. Petitioner signed an additional consent form to a second extension, dated June 28, 1987, (See, Respondent's Answer, Exh. D). On October 9, 1987, a routine medical examination of petitioner as part of his probationary evaluation indicated that he was not medically qualified to become a tenured police officer due to diabetes (See, Respondent's Answer, Exh. E). Thereafter, on October 19, 1987, petitioner received a Notice of Termination from TPD effective October 20, 1987. (See, Respondent's Answer, Exh. F).
Petitioner's first contention is that the Rules and Regs. allow for a "maximum probationary period of twenty-four (24) months" ending July 7, 1987. Thus, petitioner contends he became a tenured Police Officer on July 8, 1987, and, therefore, cannot be dismissed without a hearing. . Petitioner arrived at the "maximum" period by totalling the original eighteen (18) months probationary period plus Rules and Regs 5.2.8(a)' § allowance of one (1) six (6) month extension thereof, upon written consent of probationer. Petitioner argues that any extension beyond this "maximum" twenty-four (24) month period is illegal. This argument is meritless since petitioner fails to account for the language of Rules and Regs. 5.2.8(b) which provides:
(b) Notwithstanding the provisions of paragraphs 5.2.1, 5.2.2, and 5.2.8(a), the probationary term is extended by the number of days when the probationer does not perform the duties of the position, for example: limited duty status, annual leave, sick leave, leave without pay, or use of compensatory time earned in a different job title; provided, however, that the agency may terminate the employment of the probationer at any time during any such additional period. (emphasis added).
Thus, a probationer's probationary term is extended for the amount of time he/she is unable to perform his/her duties. See, Gutzeit v. Sexton, NYLJ May 10, 1988, p. 12, col. 1 (S.Ct. NY Co.--IA Part 23, Pecora, J.); Tomlinson v. Ward, 110 A.D.2d 537-538, 487 N.Y.S.2d 779 (1st Dept.--1985), aff'd. 66 N.Y.2d 771, 497 N.Y.S.2d 368, 488 N.E.2d 114 (1985); Bonacci v. Quinones, 124 A.D.2d 659, 660, 508 N.Y.S.2d 42 (2d Dept.--1986). Here, it is undisputed that petitioner was unable to perform his duties as a Police Officer as of March 20, 1987, and continuing thereafter for 109 days. Tacking this 109 day period onto petitioner's already once extended probationary term, means that his probation period was not up until October 24, 1987 (July 7, 1987 plus 109 days). Since Rules and Regs. 5.2.8(b) has the force and effect of law, (See, Gutzeit v. Sexton at p. 12, col. 1; Matter of Albano v. Kirby, 36 N.Y.2d 526, 529, 369 N.Y.S.2d 655, 360 N.E.2d 615 (1975)), petitioner's contention that this additional extension was illegal fails.
It is well settled law in New York State that:
[t]he 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. 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.
See, Tomlinson v. Ward, supra 110 A.D.2d at 538, 487 N.Y.S.2d 779; Matter of Going (Kennedy), 5 A.D.2d 173, 178, 170 N.Y.S.2d 234 (1st Dept.--1958), aff'd 5 N.Y.2d 900, 183 N.Y.S.2d 81, 156 N.E.2d 711 (1959). The probationary period should be measured by the number of days the probationer is actually working on the job. See, Tomlinson v. Ward, supra 110 A.D.2d at 538, 487 N.Y.S.2d 779; Bonacci v. Quinones, supra at 660. This proposition is made clear by Rule 5.2.8(b).
Petitioner's second argument appears to be an offshoot of his first, since he argues that because respondents had petitioner sign his agreement to (See Respondent's Answer Exh. D) the second 109 day extension, such extension falls within Rules & Regs. 5.2.8(a) and therefore constitutes a waiver of the automatic extension found in Rules & Regs. 5.2.8(b). In defense, respondents counter that said second agreement to the extension is inconsequential, unnecessary under Rule 5.2.8(b) and merely a form of written notice to petitioner that his probationary term would end October 24, 1987. (See, Respondent's Answer para 14). Respondents bolster this defense further in their Memorandum of Law, dated February 22, 1988, by pointing out that this so called "estoppel" argument (See, Respondents' Memorandum of Law page 5, fn. 1) is meritless since estoppel does not lie against a public body. See, Marlow v. Tully, 100 A.D.2d 786, 787, 474 N.Y.S.2d 488 (1st Dept.--1984), aff'd 63 N.Y.2d 918, 483 N.Y.S.2d 207, 472 N.E.2d 1035 (1984); Matter of Hamptons Hosp. & Med. Center v. Moore, 52 N.Y.2d 88, 93, 436 N.Y.S.2d 239, 417 N.E.2d 533 (1981). In addition, even if estoppel were applicable an essential element of equitable estoppel is that the party seeking its application was ignorant of the facts, and the doctrine may not be invoked where both parties possess the same knowledge and information. See, Marlow v. Tully, 100 A.D.2d at 787, 474 N.Y.S.2d 488; Matter of Endicott Johnson Corp. v. Bade, 42 A.D.2d 236, 239, 346 N.Y.S.2d 33 (3d Dept.--1973) mot. for lv. to app. den. 33 N.Y.2d 518, 349 N.Y.S.2d 1025, 304 N.E.2d 373 (1973). Here, petitioner does not claim ignorance of the Rules and Regs. governing his probationary period.
A review of the extension form (See, Respondents' Answer Exh. D) reveals that said form does not specify that it is exclusively a consent as found in Rule 5.2.8(a). In fact, neither Rule 5.2.8(a) nor 5.2.8(b), nor the word "consent", is mentioned therein. (See, Respondent's Answer, Exh. D).
Respondents contend that if anything, the TPD's...
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Davids v. City of New York, 2009 NY Slip Op 30581 (N.Y. Sup. Ct. 3/13/2009)
...or narrow constructions.'") (quoting Matter of Rosenberg v. Wickham, 36 A.D.2d 881, 882 (3d Dep't 1971)). Cacamcsc v. Del Castillo, 140 Misc. 2d 497, 500 (Sup, Ct. N.Y. Co. 1988) (overlooking a "minor inconsistency" with the procedural rule's text), Smith, 118 Misc. 2d 227, 228 (deciding th......