Johnson v. N.Y. City Dept. of Educ.

• Decision Date: 11 May 2010
• Citation: 73 A.D.3d 927,900 N.Y.S.2d 737
• Parties: In the Matter of Beulah P. JOHNSON, appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, respondent.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 737 73 A.D.3d 927 In the Matter of Beulah P. JOHNSON, appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, respondent. Supreme Court, Appellate Division, Second Department, New York. May 11, 2010.

Beulah P. Johnson, Brooklyn, N.Y., appellant pro se.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, and LEONARD B. AUSTIN, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Education dated November 20, 2007, terminating the petitioner's employment as a probationary librarian, the petitioner appeals from (1) a judgment of the Supreme Court, Kings County (Schneier, J.), dated June 27, 2008, which denied the petition and dismissed the proceeding, (2) an order of the same court dated December 3, 2008, which denied her motion, denominated as one for leave to renew and reargue, but which was, in effect, for leave to reargue, and (3) an order of the same court dated April 29, 2009, which denied her motion to vacate the judgment pursuant to CPLR 5015(a)(3).

ORDERED that the appeal from the order dated December 3, 2008, is dismissed; and it is further,

ORDERED that the judgment and the order dated April 29, 2009, are affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

A probationary employee may be discharged 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 ( see 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 York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838;Matter of Sztabnik v. City of New York, 31 A.D.3d 456, 817 N.Y.S.2d 666; Matter of Rivera v. Dept. of Educ., 25 A.D.3d 559, 806 N.Y.S.2d 427; Matter of Rossetti-Boerner v. Hampton Bays Union Free School District, 1 A.D.3d 367, 766 N.Y.S.2d 597). Here, the petitioner failed to carry her burden of presenting competent proof that her termination was in bad faith, for illegal reasons, or in violation of statutory or decisional law ( see Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223;Matter of Rivera v. Dept. of Educ., 25 A.D.3d 559, 806 N.Y.S.2d 427; Matter of Barry v. City of New York, 21 A.D.3d 551, 800 N.Y.S.2d 594; Matter of Santoro v. County of Suffolk, 20 A.D.3d 429, 430, 798 N.Y.S.2d 508). Thus, the Supreme Court properly denied the petition and dismissed the proceeding.

The petitioner's motion, denominated as one for leave to renew and reargue, was not based upon new facts ( see CPLR 2221[e][2], [3] ). Therefore, the motion was, in effect, a motion for leave to reargue ( see CPLR 2221[d] ), the denial of...