Muller v. Fisher

71 A.D.2d 639, 418 N.Y.S.2d 673, 1979 N.Y. App. Div. LEXIS 12861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1979
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78, inter alia, to review the determination terminating petitioner’s employment, the appeal is from an order (entitled judgment) of the Supreme Court, Kings County, entered December 19, 1978, which granted the petition to the extent of ordering that an administrative hearing be conducted "into the causes for the termination of petitioner’s employment”. Permission for the taking of this appeal is hereby granted by Mr. Justice Shapiro. Order reversed, on the law, without costs or disbursements, and petition is dismissed on the merits. The petitioner bus driver had been involved in two prior accidents in the course of his duties, for each of which he received an "Official Caution”. Promptly upon the occurrence of a third accident, he was suspended and shortly thereafter discharged from his employment. Subdivision (c) of rule 5.2.7 of the Rules and Regulations of the New York City Department of Personnel, which rules and regulations are applicable to transit authority employees, as provided for by section 1210 of the New York Public Authorities Law, reads in relevant part: "the agency head may terminate the employment of any probationer whose conduct and performance is not satisfactory after the completion of a minimum period of probationary service [two months] and before the completion of the maximum period of probationary service [one year]”. Under the circumstances, the head of the transit authority was within his rights in terminating petitioner’s employment when he determined that his performance was not satisfactory since petitioner had completed more than two months of his probationary service and one year had not yet elapsed. Mollen, P. J., Hopkins, Titone, O’Connor and Shapiro, JJ., concur.