Opinion
May 1, 1990
Appeal from the Supreme Court, New York County (David Saxe, J.).
The IAS court determined that petitioner's probationary period commenced from the date on which the revised eligibility list for his position as a highway repairman was first promulgated and made available to respondents, citing our decision in Matter of Reis v. New York State Hous. Fin. Agency ( 133 A.D.2d 316). As a consequence, IAS concluded that petitioner was illegally discharged from his job after the expiration of his one-year probationary period. Subsequent to the IAS order, the Court of Appeals reversed our determination in Reis ( 74 N.Y.2d 724), and held that a civil service employee's probationary period commenced only on the date he was appointed as a permanent employee. Giving full effect, as we must, to this ruling, the result follows here that petitioner was discharged two days before his one-year probationary period expired, and that respondents were entitled to terminate him, as they did, without formal charges or a hearing.
We reach this result without in any way approving the procedure adopted in this case of maintaining petitioner as a provisional employee of the Department of Transportation for approximately seven years. On oral argument we were assured by the Assistant Corporation Counsel that the policy of the new city administration will be to curb, if not to eliminate, this demoralizing practice.
Be that as it may, petitioner's extended provisional service is of no aid to him in this case. "[I]t is because of the inviolate constitutional mandate that we cannot by judicial fiat convert what was necessarily a temporary appointment into a permanent one * * *. It is well settled that even an unlawfully extended period of temporary service cannot ripen into a permanent appointment" (Matter of Montero v. Lum, 68 N.Y.2d 253, 259).
To the same effect is Matter of Haynes v. County of Chautauqua ( 55 N.Y.2d 814, 816-817): "Whatever appeal the argument that such a continuation by itself should transform a provisional appointment to a permanent one has, the fact remains that the Legislature has refrained from so providing. Absent such action by the Legislature, retention of a provisional employee beyond nine months, although proscribed by subdivision 2 of section 65 [of the Civil Service Law], does not, without more, ripen into a permanent appointment". (See also, Matter of Becker v. New York State Civ. Serv. Commn., 61 N.Y.2d 252.)
We reject petitioner's contention that his termination was either in bad faith or arbitrary and capricious. While petitioner, both in the course of his provisional and probationary employment, had received some satisfactory ratings, there was weighty evidence of substandard performance in both these time periods including inability to function adequately either in supervised or unsupervised assignments or effectively to perform as a team member of a work force. That damaging evidence demonstrates a rational basis for discharge, which in any event is the limit of our inquiry (Matter of Bonney v Dilworth, 99 A.D.2d 468).
We have examined petitioner's other contentions and find them without merit.
Concur — Kupferman, J.P., Ross, Rosenberger and Wallach, JJ.