Opinion
11869 Index No. 159834/2018 Case No. 2019-4350
09-29-2020
In re MD Nayeem KAHN, Petitioner–Appellant, v. CITY OF NEW YORK, et al., Respondents–Respondents.
Glass & Hogrogian LLP, New York (Bryan D. Glass of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.
Glass & Hogrogian LLP, New York (Bryan D. Glass of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.
Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.
Judgment, Supreme Court, New York County (W. Franc Perry, J.), entered May 8, 2019, which denied the petition and dismissed the proceeding brought pursuant to article 78 challenging respondent New York City Department of Education's placement of a "problem code" in petitioner's employment file in 2015, and its refusal of his request to begin an employment investigation to remove the code, unanimously affirmed, without costs.
Respondent is not prohibited from considering the past discontinuance of petitioner's probation in assessing his eligibility for employment, and assignment of the problem code based upon the discontinuance of his probationary employment is neither arbitrary nor capricious (see Matter of Pepin v. New York City Dept. of Educ., 148 A.D.3d 443, 49 N.Y.S.3d 399 [1st Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2468581 [2017] ). Petitioner lacks entitlement to an employment investigation to remove the code without a nomination for employment (see Chancellor's Regulation C–205[25][c]; Pepin, 148 A.D.3d at 443, 49 N.Y.S.3d 399 ; see also e.g. Matter of New York City Yacht Club v. New York City Dept. of Bldgs., 172 A.D.3d 606, 102 N.Y.S.3d 19 [1st Dept. 2019], lv denied 33 N.Y.3d 914, 2019 WL 4383835 [2019] ).