Summary
reviewing determination in Article 78 proceeding by terminated probationary employee
Summary of this case from Nawrocki v. N.Y. State Office of Children & Family Servs.Opinion
2013-12-3
In re Camila Ann DeVITO, Petitioner–Appellant, v. The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, et al., Respondents–Respondents.
Law Offices of Stewart Lee Karlin, P.C., New York (Stewart L. Karlin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for respondents.
Law Offices of Stewart Lee Karlin, P.C., New York (Stewart L. Karlin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for respondents.
Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered August 9, 2012, which denied the petition seeking to, inter alia, annul respondents' determination, dated February 14, 2011, terminating petitioner's employment, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
As a probationary employee, petitioner was subject to termination “at any time and for any reason, unless [she] establishe[d] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith” (Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 N.Y.2d 763, 765, 530 N.Y.S.2d 79, 525 N.E.2d 725 [1988] ). Petitioner has not met her burden ( see Matter of Witherspoon v. Horn, 19 A.D.3d 250, 800 N.Y.S.2d 377 [1st Dept.2005] ).
The fact that respondent Department of Education's determination to terminate petitioner's employment occurred after the effective date of her resignation does not render it one made in “bad faith.” Pursuantto Chancellor's Regulation C–205, ¶ 26, despite her resignation, there was still a possibility that petitioner could return to work in the future, and thus the resignation was not irrevocable ( see e.g. Matter of Folta v. Sobol, 210 A.D.2d 857, 621 N.Y.S.2d 136 [3d Dept.1994] ). ANDRIAS, J.P., ACOSTA, MOSKOWITZ, RICHTER, MANZANET–DANIELS, JJ., concur.