Sessoms v. Abate

223 A.D.2d 387, 636 N.Y.S.2d 324, 5 Am. Disabilities Cas. (BNA) 934, 1996 N.Y. App. Div. LEXIS 255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (Angela M. Mazzarelli, J.), entered November 10, 1993, which granted the petition to the extent of directing a trial on the issue of whether petitioner’s termination as a probationary correction officer was in bad faith, unanimously reversed, on the law, the petition is denied and the proceeding dismissed, without costs.

Inasmuch as petitioner, in light of the decision in Sharp v Abate (887 F Supp 695), in which she was a plaintiff, now concedes that her medical condition is not a disability within the meaning of the Americans with Disabilities Act of 1990 (42 USC § 12102) or the New York Human Rights Law (Executive Law § 292), we find no basis for petitioner’s bad faith claim. It is well settled that petitioner’s record of excessive absence, lateness and one instance of absence without leave, particularly in light of her continued absences and latenesses after a corrective interview regarding those subjects, provided a sufficient basis for the termination of this probationary employee (see, Matter of Nelson v Abate, 205 AD2d 454). Concur—Murphy, P. J., Sullivan, Wallach, Kupferman and Ross, JJ.