Gagedeen v. Ponte

• Decision Date: 20 March 2019
• Docket Number: 2017–07245,Index No. 7803/16
• Citation: 96 N.Y.S.3d 349,170 A.D.3d 1013
• Parties: In the Matter of Kristofer GAGEDEEN, Appellant, v. Joseph PONTE, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1013

96 N.Y.S.3d 349

In the Matter of Kristofer GAGEDEEN, Appellant,

v.Joseph PONTE, etc., et al., Respondents.

2017–07245

Index No. 7803/16

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

Submitted — December 18, 2018

March 20, 2019

Kristofer Gagedeen, New York, NY, appellant pro se.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Julie Steiner of counsel), for respondents.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent New York City Department of Correction dated February 29, 2016, which terminated the petitioner's probationary employment as a correction officer, the petitioner appeals from a judgment of the Supreme Court, Queens County (Howard G. Lane, J.), entered May 9, 2017. The judgment denied the petition and dismissed the proceeding.

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

On May 16, 2013, the petitioner was appointed as a New York City Correction Officer, subject to a two-year probationary period, during which time his employment could not be terminated until at least two months of that probationary period had elapsed. In a determination dated February 29, 2016, the respondent New York City Department of Correction, by First Deputy Commissioner Dina Simon, terminated the petitioner's probationary employment. The petitioner was informed of this determination, effective March 2, 2016, in a letter from Claudette Wynter, Acting Deputy Commissioner for Human Resources, dated March 2, 2016.

Thereafter, the petitioner commenced this proceeding pursuant to CPLR article 78 against the City of New York and the New York City Department of Correction, among others (hereinafter collectively the City), to review the determination terminating his employment. The petitioner alleged, among other things, that his probationary period had ended prior to the termination of his employment, and that he was therefore entitled to certain protections under the Civil Service Law, which were not provided. The petitioner further alleged that the Acting Deputy Commissioner for Human Resources did not have the authority to terminate his employment, and that only the Commissioner of the Department of Correction was vested with the authority to terminate his employment. In response, the City maintained that the petitioner was a probationary employee at the time his employment was terminated because his two-year probationary period was extended by the number of days that he was required to work but was absent, and by the petitioner's agreement to further extend his probationary period for six months based upon his attendance, punctuality, and disciplinary records. The City further alleged that on December 7, 2015, the Commissioner of the Department of Correction delegated to First Deputy Commissioner Simon his authority to appoint and remove Department of Correction employees, and that on February 29, 2016, First Deputy Commissioner Simon made a final determination to terminate the petitioner's probationary employment. In the judgment appealed from, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

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, 402 N.Y.S.2d 807, 373 N.E.2d 987 ; see Matter of Duncan v. Kelly, 9 N.Y.3d 1024, 1025, 853 N.Y.S.2d 260, 882 N.E.2d 872 ; Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763, 697 N.Y.S.2d 869, 720 N.E.2d 89 ; Matter of Mathis v. New York State Dept. of Correctional Servs., 81 A.D.3d 1435, 1436, 916 N.Y.S.2d 881 ). "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, 938 N.Y.S.2d 597 ; see Matter of Johnson v. County of Orange, 138 A.D.3d 850, 851, 29 N.Y.S.3d 502 ).

Contrary to the petitioner's contention, his appointment did not become permanent upon the completion of the minimum two-month period of probation set forth in the Personnel Rules and Regulations of the City of New York. The two-month period was simply the beginning portion of the petitioner's two-year probationary term and refers only to the minimum period of service which a probationary employee must serve prior to any termination for unsatisfactory conduct and performance. The Department of Correction was not required to provide the petitioner with written notice that his probationary term would be continued after the completion of that two-month period (see Personnel Rules and Regs of City of N.Y. [55 RCNY Appendix A] ¶¶ 5.2.1[a]; 5.2.7[a], [c]; cf. Matter of Albano v. Kirby, 36 N.Y.2d 526, 369 N.Y.S.2d 655, 330 N.E.2d 615 ). Further, a period of probationary employment is " ‘measured by the number of days a probationer is actually working at the job’ " ( Matter of Marshall v. Simon, 160 A.D.3d 648, 649, 74 N.Y.S.3d 580, quoting Tomlinson v. Ward, 110 A.D.2d 537, 538, 487 N.Y.S.2d 779 ; see Matter of Boyle v. Koch, 114 A.D.2d 78, 80, 497 N.Y.S.2d 663 ), and "may be extended by the number of days that the probationary employee does not perform the duties of the position" ( Matter of Marshall v. Simon, 160 A.D.3d at 649, 74 N.Y.S.3d 580 ). We agree with the Supreme Court's determination that the termination of the petitioner's employment occurred while he remained a probationary employee (see Personnel Rules and Regs of City of N.Y. [55 RCNY Appendix A] ¶ 5.2.8; NY City Dept of Corr rule...