Haberman v. Codd

• Decision Date: 10 July 1975
• Citation: 48 A.D.2d 505,370 N.Y.S.2d 118
• Parties: William F. HABERMAN, Petitioner-Respondent, v. Michael J. CODD, as Police Commissioner of the New York City Police Department, et al., Respondents-Appellants. For Judgment pursuant to Article 78 of the CPLR.
• Court: New York Supreme Court — Appellate Division

Page 118

370 N.Y.S.2d 118

48 A.D.2d 505

William F. HABERMAN, Petitioner-Respondent, v. Michael J. CODD, as Police Commissioner of the New York City Police Department, et al., Respondents-Appellants For Judgment pursuant to Article 78 of the CPLR.

Supreme Court, Appellate Division, First Department.

July 10, 1975.

Martin H. Selman, New York City, of counsel (L. Kevin Sheridan, New York City, with him on the brief, W. Bernard Richland, Corp. Counsel, New York City), for respondents-appellants.

Joseph W. Allen, New York City, for petitioner-respondent.

Before STEVENS, P.J., and KUPFERMAN, MURPHY, TILZER and CAPOZZOLI, JJ.

PER CURIAM:

In this Article 78 proceeding seeking restoration of petitioner's employment as a probationary police officer, respondents appeal by leave of a Justice of this Court, from an order (incorrectly entitled 'Judgment') (Quinn, J.), entered in New York County on October 4, 1974, which granted the petition to the extent of remanding this matter to the respondents for further proceedings in compliance with Rules and Regulations 5.2.4, subd. (c) and E.24.4 of the New York City Civil Service Commission and denied respondents' cross-motion to dismiss the petition.

The petition alleges and it is undisputed that petitioner was appointed in the competitive class as a probationary patrolman on January 29, 1973; that he successfully completed his Police Academy training and was thereafter assigned to precinct field duty where he apparently performed all his duties in a satisfactory manner. On October 24, 1973, he was notified that his services as a probationary patrolman were being terminated effective October 26, 1973, and his appointment was in fact terminated on that day. The petition further alleges that petitioner's termination was arbitrary and in violation of his constitutional and statutory rights in that he was not given sufficient prior notice, nor a hearing, nor an opportunity to present evidence in his behalf, and that his dismissal denied him the right to be gainfully employed in his chosen occupation. Special Term read 5.2.4, subd. (c) and E.24.4 of the Rules and Regulations together and held that petitioner could not have been lawfully dismissed before the expiration of his probationary period, unless the City Personnel Director was shown evidence of a basis for such dismissal and that evidence satisfied him that the probationer's services were unsatisfactory. The court found that neither the Police Commissioner nor the City Personnel Director indicated that any showing was made of unsatisfactory service or that any such showing was sufficient to satisfy the director of the reasonableness of the dismissal. Respondents appeal and argue that petitioner fails to state a cause of action entitling him to relief since his dismissal during his probationary period was clearly authorized by Civil Service Rule 5.2.4, subd. (c) which has the force of law and is expressly made controlling over a regulation.

Rule 5.2.4, subd. (c) states in pertinent part:

'(T)he appointing officer may terminate the employment of any probationer whose conduct and performance is not satisfactory after the completion of a minimum period of probationary service and before the completion of his maximum period of probationary service by notice to the said probationer and to the director (of personnel). The specified minimum period of probationary service, unless otherwise set forth in the terms and conditions of the certification for appointment or promotion as determined by the director, shall be (a) two months for every appointment to a position in the competitive or labor class. . . .'

Civil Service Regulation E.24.4 provides:

'Upon showing to the satisfaction of the director that the services of a probationer have been unsatisfactory, an appointing officer may terminate the employment of such probationer at any time during the probationary period by notice to him and to the...