Fortner v. New York City Department of Correction

Appellate Division of the Supreme Court of New York

Fortner v. New York City Department of Correction

280 A.D.2d 381, 721 N.Y.S.2d 227, 2001 N.Y. App. Div. LEXIS 1710

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

DecidedFebruary 20, 2001

StatusPublished

This text of 280 A.D.2d 381 (Fortner v. New York City Department of Correction) 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.

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Fortner v. New York City Department of Correction, 280 A.D.2d 381, 721 N.Y.S.2d 227, 2001 N.Y. App. Div. LEXIS 1710 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered October 19, 1999, which denied the petition brought pursuant to CPLR article 78 to annul respondent’s termination of petitioner from his position as a probationary correction officer, and granted the cross-motion of respondent to dismiss the petition, and bringing up for review an order, same court and Justice, entered July 18, 2000, which, inter alia, denied petitioner’s motion for renewal, unanimously affirmed, without costs.

Petitioner was properly terminated from his position as a New York City correction officer without a hearing upon respondent’s determination that he violated the terms of his limited probation as set forth in his negotiated plea agreement (see, Matter of Miller v New York State Dept. of Correctional Servs., 126 AD2d 831, affd 69 NY2d 970; Matter of Sepulveda v Long Is. State Park & Recreation Commn., 123 AD2d 703). Petitioner adduced no evidence that his termination was effected in bad faith. Nor do we find that annulment and remittal for reconsideration of the sanction is appropriate. Petitioner’s termination does not shock the judicial conscience nor does it constitute an abuse of discretion as a matter of law (Matter of Featherstone v Franco, 95 NY2d 550).

Renewal was properly denied since the purportedly new facts were available to petitioner at the time of his original application (see, Silverman v Leucadia, Inc., 159 AD2d 254, 255). Concur — Rosenberger, J. P., Andrias, Wallach, Lerner and Buckley, JJ.

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—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered October 19, 1999, which denied the petition brought pursuant to CPLR article 78 to annul respondent’s termination of petitioner from his position as a probationary correction officer, and granted the cross-motion of respondent to dismiss the petition, and bringing up for review an order, same court and Justice, entered July 18, 2000, which, inter alia, denied petitioner’s motion for renewal, unanimously affirmed, without costs.

Petitioner was properly terminated from his position as a New York City correction officer without a hearing upon respondent’s determination that he violated the terms of his limited probation as set forth in his negotiated plea agreement (see, Matter of Miller v New York State Dept. of Correctional Servs., 126 AD2d 831, affd 69 NY2d 970; Matter of Sepulveda v Long Is. State Park & Recreation Commn., 123 AD2d 703). Petitioner adduced no evidence that his termination was effected in bad faith. Nor do we find that annulment and remittal for reconsideration of the sanction is appropriate. Petitioner’s termination does not shock the judicial conscience nor does it constitute an abuse of discretion as a matter of law (Matter of Featherstone v Franco, 95 NY2d 550).

Renewal was properly denied since the purportedly new facts were available to petitioner at the time of his original application (see, Silverman v Leucadia, Inc., 159 AD2d 254, 255). Concur — Rosenberger, J. P., Andrias, Wallach, Lerner and Buckley, JJ.

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280 A.D.2d 381, 721 N.Y.S.2d 227, 2001 N.Y. App. Div. LEXIS 1710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortner-v-new-york-city-department-of-correction-nyappdiv-2001.

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