Opinion
No. 16180 Index No. 154634/20 Case No. 2021-01665
06-23-2022
In the Matter of Jermell Martinez, Petitioner-Appellant, v. City of New York et al., Respondents-Respondents.
Law Office of Caner Demirayak, P.C., Brooklyn (Caner Demirayak of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.
Law Office of Caner Demirayak, P.C., Brooklyn (Caner Demirayak of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.
Before: Renwick, J.P., Kern, Kennedy, Mendez, Higgitt, JJ.
Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about April 6, 2021, denying the petition to vacate a determination by respondent New York City Administration for Children's Services (ACS), dated December 3, 2019, which terminated petitioner's employment, and granting respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner failed to show by competent proof that ACS terminated his employment in bad faith, or for an improper or impermissible reason (see Matter of Che Lin Tsao v Kelly, 28 A.D.3d 320, 321 [1st Dept 2006]; see also Matter of Patterson v City of New York, 173 A.D.3d 540, 541 [1st Dept 2019], lv denied 35 N.Y.3d 906 [2020]). Petitioner's unauthorized absences from November 13, 2019 to the date of his termination, along with his failure to follow ACS sick leave policy, served as a good-faith basis for firing him (see e.g. Morgan v Kerik, 267 A.D.2d 8, 9 [1st Dept 1995]; Simpson v Abate, 213 A.D.2d 190, 191 [1st Dept 1994]).
The petition also fails to adequately allege that ACS violated the Family Medical Leave Act, as petitioner did not assert that he had worked for ACS for 12 months or 1,250 hours, and thus failed to demonstrate that he was an eligible employee under 29 USC § 2611(2)(A)(ii) (see Donahue v Asia TV USA Ltd., 208 F.Supp.3d 505, 512 [SD NY 2016]). Indeed, petitioner admits that he was employed by ACS for only seven months, and he failed to preserve for review his contention that ACS and his previous employer, the Department of Education, constituted a "single employer" (see Green v New York City Police Dept., 34 A.D.3d 262, 263 [1st Dept 2006]).
Petitioner has failed to set forth a claim under the New York City Human Rights Law (Administrative Code of City of NY § 8-107), as the petition does not plead any facts supporting an inference of discrimination based on petitioner's status as a caregiver (see e.g. Whitfield-Ortiz v Department of Educ. of the City of N.Y., 116 A.D.3d 580, 581 [1st Dept 2014]; Askin v Department of Educ. of City of N.Y., 110 A.D.3d 621, 622 [1st Dept 2013]).