Opinion
14918 Index No. 154811/19 Case No. 2020–04981
12-28-2021
In the Matter of Sergeant Matthew FOLEY, etc., Petitioner–Appellant, v. James O'NEILL, etc., et al., Respondents–Respondents.
Lynn Gartner Dunne, LLP, Mineola (Christopher A. Renke of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondents.
Lynn Gartner Dunne, LLP, Mineola (Christopher A. Renke of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondents.
Kern, J.P., Moulton, Mendez, Shulman, Higgitt, JJ.
Judgment (denominated an order), Supreme Court, New York County (Lynn R. Kotler, J.), entered July 10, 2020, denying the petition to annul the determination of respondents James O'Neill, as Police Commissioner of the City of New York, The Police Department of the City of New York, and The City of New York (collectively, NYPD), dated February 6, 2019, which terminated petitioner's employment as an NYPD police officer, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
"Petitioner, as a probationary employee, may be discharged without a hearing, or statement of reasons, for any reason or no reason at all, in the absence of a demonstration that the dismissal was in bad faith, for a constitutionally impermissible reason, or in violation of the law" ( Matter of Che Lin Tsao v. Kelly, 28 A.D.3d 320, 321, 812 N.Y.S.2d 522 [1st Dept. 2006] ). Petitioner failed to meet his burden that the NYPD acted in bad faith by terminating him after an extensive investigation into his avoidance of a mandated breath test (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763, 697 N.Y.S.2d 869, 720 N.E.2d 89 [1999] ; Matter of Lomando v. Kelly, 33 A.D.3d 510, 511, 822 N.Y.S.2d 535 [1st Dept. 2006] ).
The NYPD Police Commissioner has authority under Administrative Code of City of N.Y. § 14–115(d) to "impose punishment at any time" during an employee's dismissal probationary period (see Matter of Wilson v. Bratton, 266 A.D.2d 140, 141–142, 699 N.Y.S.2d 29 [1st Dept. 1999] ). Given petitioner's probationary status, and other reasons for termination in addition to the breach of the breath-test provision, i.e., violation of a sick-leave policy, failure to obey a lawful order, and lying about what time he called in, there was a good-faith basis for termination (see Swinton, 93 N.Y.2d at 761–763, 697 N.Y.S.2d 869, 720 N.E.2d 89 ).