Opinion
September 23, 1983
Appeal from the Supreme Court, Erie County, Kuszynski, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and Boomer, JJ.
Judgment unanimously modified in accordance with memorandum and, as modified, affirmed, with costs to petitioner, and petitioner's motion for discovery granted. Memorandum: Petitioner received a provisional appointment with respondent as a hearing officer in April of 1978, receiving high praise from his supervisor in 1979. Nevertheless, his employment was terminated in December of 1981. Petitioner alleges that the termination was occasioned by remarks circulated within the department concerning his mental stability. Thus he commenced this proceeding seeking reinstatement, back pay, and damages. Special Term dismissed the petition in its entirety and denied petitioner's motion for discovery. Special Term was correct in noting that, as a provisional employee, petitioner has no property right to a hearing prior to termination ( Board of Regents v Roth, 408 U.S. 564, 569; Matter of Anonymous v Codd, 40 N.Y.2d 860; Matter of Talamo v Murphy, 38 N.Y.2d 637; Matter of Salvatore v Nasser, 81 A.D.2d 1012), nor does he have a right to reinstatement, back pay, or damages (see Board of Regents v Roth, supra, n 12; Matter of Salvatore v Nasser, supra, p 1013). Nevertheless, the petition does state a cause of action for a destigmatization hearing (see Board of Regents v Roth, supra; Matter of Salvatore v Nasser, supra; Matter of Horowitz v Roche, 70 A.D.2d 854; Matter of Brathwaite v Manhattan Children's Psychiatric Center, 70 A.D.2d 810; Matter of Perry v Blair, 49 A.D.2d 309; Matter of Reeves v Golar, 45 A.D.2d 163), since petitioner alleges that his termination was occasioned by false remarks circulated within the department ( Codd v Velger, 429 U.S. 624; Bishop v Wood, 426 U.S. 341), and the petition is reinstated to that extent. Moreover, Special Term should have granted petitioner's motion for discovery, by which he seeks to depose various employees of respondent and obtain memoranda circulated in the department pertaining to his fitness for the job (CPLR 408).