Lentlie v. Egan

Decision Date05 May 1983
Citation94 A.D.2d 839,463 N.Y.S.2d 542
PartiesIn the Matter of Richard J. LENTLIE, Appellant-Respondent, v. John C. EGAN, as Commissioner of the New York State Office of General Services, et al., Respondents-Appellants.
CourtNew York Supreme Court — Appellate Division

Jeffrey J. Sherrin, Albany, for appellant-respondent.

Robert Abrams, Atty. Gen. (William J. Kogan, Asst. Atty. Gen., of counsel), for respondents-appellants.

Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and LEVINE, JJ.

MEMORANDUM DECISION.

Cross appeals from a judgment of the Supreme Court at Special Term, entered November 9, 1982 in Albany County, which, in a proceeding pursuant to CPLR article 78, (1) denied petitioner's application for reinstatement to his position as a security services assistant, (2) held that he was not entitled to a hearing regarding his termination from said employment, and (3) ordered that he be granted a hearing to clear his name.

In September of 1981 while petitioner was employed by the New York State Office of General Services (OGS), he was offered and accepted a temporary appointment as a Security Services Assistant I (S.S.A.I.). Satisfactory completion of a 26-to-52-week probationary period was a prerequisite to a permanent appointment. During the probationary period petitioner was terminated and immediately reinstated to his former position as a "Cleaner". When advised by letter from OGS that his termination was due to an unsatisfactory interim probationary report, he sought and was granted a review of his termination. Subsequent to the review meeting the termination was upheld. Petitioner maintained that he was not given specific reasons for his termination but was merely asked to explain why he should not be discharged. Respondents contend otherwise. While the probationary reports initially indicate that petitioner was showing improvement and was a good worker, a later report indicated deficiencies primarily dealing with petitioner's reluctance to operate within the rules and to accept supervision together with a non-cooperative attitude toward his fellow workers.

Contending that his termination was due not to unsatisfactory performance but rather to a campaign of harassment by his new supervisor, petitioner commenced an article 78 proceeding seeking a judgment declaring his termination to have been arbitrary and capricious and requesting his reinstatement or, alternatively, a hearing so as to enable him to clear his name. Special Term concluded that the discharge was in good faith but granted petitioner a hearing to clear his name after concluding that it was not realistic "to say that these charges will not be disseminated * * * ". Both parties appeal from that determination.

Prior to addressing the merits we feel compelled to address petitioner's urgent prayer advanced in his brief and at oral argument that respondents' answer be rejected by reason of its insufficiency and improper verification. We decline to do so for while an improperly verified pleading may be treated as a nullity, it may be so considered only if notice is given to the opposition with due diligence. Due diligence has been held to mean within 24 hours or immediately, and it appears that no such notice was provided here. Hence, the deficiencies, if any, are deemed waived (Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3022:2, p. 396).

It is well and long settled that a probationary employee may be discharged at any time without a hearing, without charges being...

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28 cases
  • Lentlie v. Egan
    • United States
    • New York Court of Appeals Court of Appeals
    • February 28, 1984
  • Jacobi v. Murray
    • United States
    • New York Supreme Court
    • October 13, 2017
    ...Id. citing D. Siegel, Practice Commentaries in McKinney's Cons. Laws of NY, Book 7B, C3022:2, p. 396; see also Lentlie v. Egan, 94 A.D.2d 839, 840, 463 N.Y.S.2d 542 (3d Dept.1983, mem) ; Air New York, Inc. v. Alphonse Hotel Corp., 86 A.D.2d 932, 448 N.Y.S.2d 795 (3d Dept.1982) ; Master v. P......
  • Miller v. Board of Assessors
    • United States
    • New York Court of Appeals Court of Appeals
    • December 18, 1997
    ...v. Oppold, 74 N.Y. 307). Various lower courts have defined due diligence to mean within 24 hours (see, e.g., Matter of Lentlie v. Egan, 94 A.D.2d 839, 840, 463 N.Y.S.2d 542, affd. 61 N.Y.2d 874, 474 N.Y.S.2d 467, 462 N.E.2d 1185; Matter of Ireland v. Town of Queensbury Zoning Bd. of Appeals......
  • 3170 Atl. Ave Corp v. Jereis
    • United States
    • New York Civil Court
    • February 6, 2013
    ...courts have held that a notice that the petition will be treated as a nullity must be given within 24 hours. Lentlie v. Egan, 94 A.D.2d 839, 840, 463 N.Y.S.2d 542 (3d Dept 1983); O'Neil v. Kasler, 53 A.D.2d 310, 385 N.Y.S.2d 684 (4th Dept.1977); Jewel of Asia, Inc. v. Unique Affairs, 2007 N......
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