Matter of Maleski v. New York City Dept. of Educ.

Determination of respondent New York City Department of Education dated April 29, 2013, which terminated petitioner’s employment as a probationary special education teacher, unanimously confirmed, the claim brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Manuel J. Mendez, J.], entered June 12, 2014), dismissed, without costs, and the matter remanded for further proceedings on petitioner’s plenary claim alleging discrimination under the New York City Human Rights Law. A probationary employee may be terminated without a hearing, for any reason or no reason at all, as long as the dismissal is not unlawful or in bad faith (see Matter of Che Lin Tsao v Kelly, 28 AD3d 320 [1st Dept 2006]). Here, based on the limited record before us, we find no basis to conclude that petitioner’s termination was in bad faith. Petitioner’s plenary claim alleging discrimination under the New York City Human Rights Law is not properly before us. The motion court transferred only the article 78 claim and stayed the plenary claim. We decline to consider petitioner’s arguments that his termination violated the First Amendment and Labor Law § 201-d (2) (c) because he failed to raise these issues in either his original or amended pleadings (see Matter of Cherry v Horn, 66 AD3d 556, 557 [1st Dept 2009]). Concur — Tom, J.P., Friedman, Richter, Gische and Gesmer, JJ.