Abraham v. Tisch

2024 NY Slip Op 30876(U)

• Court: New York Supreme Court, New York County
• Decided: March 18, 2024
• Status: Unpublished

Opinion

Abraham v Tisch 2024 NY Slip Op 30876(U) March 18, 2024 Supreme Court, New York County Docket Number: Index No. 160335/2023 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160335/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/18/2024

$$$$ SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ------------------------------------------------------------------------------------ X

Abraham, Sydney INDEX NO. 160335/2023 Petitioner,

-v- DECISION AND ORDER ON MOTION JESSICA TISCH, as Commissioner of the New York City Department of Sanitation, THE NEW YORK CITY MS001 and MS002 DEPARTMENT OF SANITATION, and THE CITY OF NEW YORK, Respondents ------------------------------------------------------------------------------------ X The following e-filed documents, listed by NYSCEF document number (Motion 001) 1-28, 35 were read on this motion to/for ARTICLE 78 .

The following e-filed documents, listed by NYSCEF document number (Motion 002) 29-34 were read on this motion to/for EXTEND TIME .

Motion Sequence Numbers 001 and 002 are consolidated for disposition. The cross-

motion to dismiss the petition (MS001) to reinstate petitioner to his position as a sanitation

worker for respondent the New York City Department of Sanitation (“Sanitation”) is granted.

Respondents’ motion (MS002) to extend its time to respond to the petition is granted.

Background

Petitioner contends that he was appointed to work as a sanitation worker on July 11,

2021. His probationary period was therefore supposed to end on January 11, 2023. Petitioner

admits that during his first 18 months on the job, he “had several minor complaints” filed against

him. He explains that the first two incidents involved calling out because his son was sick.

According to petitioner, his supervisor rejected the second requested absence and insisted

petitioner had violated a Sanitation rule about calling out for an emergency.

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Petitioner points out that the next complaint was on January 21, 2022, where he reversed

a Sanitation truck into another vehicle. On October 26, 2022, petitioner received another

complaint related to the upkeep of his assigned Sanitation truck. He explains that the

regeneration light and alarm activated. Petitioner insists that respondents incorrectly filed a

complaint against him and that he was not responsible for the truck’s repairs.

Petitioner alleges that as a result of these complaints, his probationary period was

extended to July 11, 2023. He claims that on June 13, 2023 he was marked as absent without

leave at a roll call because he was suffering from a stomach virus and went to use the bathroom.

Petitioner insists he was subsequently terminated despite the fact that the was actually present at

work on June 13, 2023 and therefore should not have been marked absent.

Respondents cross-move to dismiss on the ground that they had the authority to terminate

petitioner, a probationary employee, as long as it was not in bad faith. They insist that petitioner

failed to abide by safety regulations, failed to provide adequate excuses for not reporting to work

and failed to ensure that his truck had sufficient fuel. With respect to the June 13, 2023 roll call

incident, respondents argue that petitioner did not show up for an 8 a.m. roll call and was last

seen at 6 a.m. that morning.

In reply, petitioner observes that on June 13, 2023 he was assigned to a 12 a.m. to 8 a.m.

shift and had been suffering from a stomach virus for the last few days. He claims he told a

supervisor he was not feeling well right before the 8 a.m. roll call and reported by 8:13 a.m.

Petitioner complains that he was marked as absent despite attempting to explain his brief delay.

Discussion

In an Article 78 proceeding, “the issue is whether the action taken had a rational basis

and was not arbitrary and capricious” (Ward v City of Long Beach, 20 NY3d 1042, 1043, 962

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NYS2d 587 [2013] [internal quotations and citation omitted]). “An action is arbitrary and

capricious when it is taken without sound basis in reason or regard to the facts” (id.). “If the

determination has a rational basis, it will be sustained, even if a different result would not be

unreasonable” (id.). “Arbitrary action is without sound basis in reason and is generally taken

without regard to the facts” (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of

Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833

[1974]).

“A court's review of a determination to terminate a probationary employee is limited to

consideration of whether the dismissal was in bad faith, in violation of statutory or decisional

law, or for unconstitutional or illegal reasons” (Matter of Cooke v County of Suffolk, 11 AD3d

610, 611, 783 NYS2d 392 [2d Dept 2004]).

The Court grants respondents’ cross-motion and dismisses the petition. There is no

dispute that petitioner received multiple complaints that resulted in an extension of his

probationary period. And petitioner failed to meet his burden to show that his termination was in

bad faith. Petitioner’s extensive disciplinary history combined with the June 13, 2023 incident

provides ample grounds to terminate petitioner. The Court recognizes that petitioner offers a

different take about what happened on June 13, 2023 but respondents were entitled to fire

petitioner for any reason as long as it wasn’t in bad faith. That petitioner disagrees with

respondents’ version of events is not a basis for reinstatement.

To be sure, some of the individual incidents, standing alone, would raise serious

questions about a bad faith allegation. For instance, the fact that petitioner was told he could not

call out in order to take care of a sick child for a second consecutive day despite purportedly

handing over medical documentation is concerning, to say the least. But that was not the only

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incident in petitioner’s disciplinary file nor was it the sole basis for his termination. Among

other things, petitioner hit another vehicle while backing up a Sanitation truck without having a

co-worker assist him and he also received a complaint related to the maintenance of the truck.

Taken together, these incidents meet the low threshold required to justify the termination

of a probationary employee. It is not this Court’s role to second-guess respondents’ decision

where, as here, there is no basis to find that respondents acted in bad faith.

Accordingly, it is hereby

ORDERED that respondents’ cross-motion to dismiss is granted; and it is further

ORDERED that respondents’ motion (MS002) for leave to file a reply to their cross-

motion is granted and the Court considered that filing, NYSCEF Doc. No. 35; and it is further

ADJUDGED that the petition is denied and this proceeding is dismissed without costs or

disbursements and the clerk is directed to enter judgment accordingly upon presentation of

proper papers therefor.

3/18/2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ GRANTED DENIED GRANTED IN PART X OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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