Lentlie v. Egan

• Decision Date: 05 May 1983
• Citation: 94 A.D.2d 839,463 N.Y.S.2d 542
• Parties: In 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.
• Court: New York Supreme Court — Appellate Division

Page 542

463 N.Y.S.2d 542

94 A.D.2d 839

In 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.

Supreme Court, Appellate Division Third Department.

May 5, 1983.

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., Book7B, 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 filed or without specific reasons being given (Matter of Talamo v. Murphy, 389 N.Y.S.2d 649, 38 N.Y.2d 637, 382...