Duncan v. Kelly

[298] Order and judgment (one paper), Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 26, 2005, dismissing this proceeding seeking to annul respondents’ determination that terminated petitioner’s employment, affirmed, without costs. The facts have been set forth by the dissent and need not be repeated here. It is well settled that a probationary employee may be discharged for any or no reason, absent a showing that such dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law (see Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]). Petitioner failed to meet his burden of proving dismissal in bad faith (see Matter of Brown v City of New York, 280 AD2d 368 [2001]). We reject the claim that his termination on December 18, 2003 was procedurally improper as based on prehiring conduct, over which exclusive authority would be vested in the Department of Citywide Administrative Services (cf. Matter of Umlauf v Safir, 286 AD2d 267 [2001]). To the contrary, it was petitioner’s posthiring conduct, in making false and misleading statements to members of the Internal Affairs Bureau (LAB) concerning a crime he was allegedly involved in prior to his employment as a police officer, that provided ample basis for his termination. The dissents’ adoption of petitioner’s argument and the conclusion that respondents “summarily deem[ed] petitioner’s answer to be lies,” is unsupported by the record. The determination was based on an LAB investigation (which actually absolved petitioner of two other crimes); a redacted copy of the investigation report was provided to the court for review. These findings were reviewed by the Chief of Personnel of the New York Police Department and subsequently approved by the First Deputy Commissioner and the Police Commissioner and are entitled to substantial deference. No basis exists to disturb respondent’s findings of credibility (Matter of Berenhaus v Ward, 70 NY2d 436 [1987]; Matter of Alvarez v Kelly, 2 AD3d 219 [2003]). These findings are entitled to great deference (Matter of Batista v Kelly, 16 AD3d 182 [2005]). The motion court correctly distinguished this from action taken for prehiring conduct. Concur—Saxe, J.P., Marlow, Nardelli and Sweeny, JJ.