Barry v. City of New York

Appellate Division of the Supreme Court of New York

Barry v. City of New York

21 A.D.3d 551, 800 N.Y.S.2d 594

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 22, 2005

StatusPublished

Cited by5 cases

This text of 21 A.D.3d 551 (Barry v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barry v. City of New York, 21 A.D.3d 551, 800 N.Y.S.2d 594 (N.Y. Ct. App. 2005).

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Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Fire Department of the City of New York, dated March 11, 2003, terminating the petitioner’s employment as a probationary firefighter, the appeal is from a judgment of the Supreme Court, Kings County (Hubsher, J.), dated April 22, 2004, which granted the petition and directed that the petitioner be reinstated to his position as a probationary firefighter.

Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the determination is confirmed, and the proceeding is dismissed on the merits.

The petitioner was a probationary firefighter. At the time of his appointment, he signed an agreement pursuant to which he agreed, inter alia, to be tested for marijuana, among other substances, on a random basis, at the discretion of the Fire Department of the City of New York, during the 18-month period of his probation. The agreement further provided that the petitioner understood that if there was a finding of the presence of marijuana in his blood or urine, that would be deemed a violation of the agreement, and he would be terminated. During the petitioner’s probationary term, his urine tested positive for marijuana and, in accordance with the agreement, he was terminated. There was no pre-termination hearing. The Supreme Court granted the instant petition pursuant to CPLR article 78 to annul the determination terminating him, and directed that he be reinstated. We reverse.

A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law (see Matter of York v McGuire, 63 NY2d 760 [1984]; Matter of Cooke v County of Suffolk, [552]*55211 AD3d 610, 611 [2004]). The petitioner failed to carry his burden of raising a material issue as to bad faith, illegal reasons, or a violation of statutory or decisional law (see Matter of Cooke v County of Suffolk, supra). Accordingly, the Supreme Court should have denied the petition, confirmed the determination, and dismissed the proceeding on the merits. H. Miller, J.P., Cozier, Ritter and Fisher, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Fire Department of the City of New York, dated March 11, 2003, terminating the petitioner’s employment as a probationary firefighter, the appeal is from a judgment of the Supreme Court, Kings County (Hubsher, J.), dated April 22, 2004, which granted the petition and directed that the petitioner be reinstated to his position as a probationary firefighter.

Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the determination is confirmed, and the proceeding is dismissed on the merits.

The petitioner was a probationary firefighter. At the time of his appointment, he signed an agreement pursuant to which he agreed, inter alia, to be tested for marijuana, among other substances, on a random basis, at the discretion of the Fire Department of the City of New York, during the 18-month period of his probation. The agreement further provided that the petitioner understood that if there was a finding of the presence of marijuana in his blood or urine, that would be deemed a violation of the agreement, and he would be terminated. During the petitioner’s probationary term, his urine tested positive for marijuana and, in accordance with the agreement, he was terminated. There was no pre-termination hearing. The Supreme Court granted the instant petition pursuant to CPLR article 78 to annul the determination terminating him, and directed that he be reinstated. We reverse.

A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law (see Matter of York v McGuire, 63 NY2d 760 [1984]; Matter of Cooke v County of Suffolk, [552]*55211 AD3d 610, 611 [2004]). The petitioner failed to carry his burden of raising a material issue as to bad faith, illegal reasons, or a violation of statutory or decisional law (see Matter of Cooke v County of Suffolk, supra). Accordingly, the Supreme Court should have denied the petition, confirmed the determination, and dismissed the proceeding on the merits. H. Miller, J.P., Cozier, Ritter and Fisher, JJ., concur.

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Bluebook (online)

21 A.D.3d 551, 800 N.Y.S.2d 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-v-city-of-new-york-nyappdiv-2005.

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