Simpson v. Abate

Appellate Division of the Supreme Court of New York

Simpson v. Abate

213 A.D.2d 190, 625 N.Y.S.2d 2, 1995 N.Y. App. Div. LEXIS 2522

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

DecidedMarch 7, 1995

StatusPublished

Cited by10 cases

This text of 213 A.D.2d 190 (Simpson v. Abate) 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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Simpson v. Abate, 213 A.D.2d 190, 625 N.Y.S.2d 2, 1995 N.Y. App. Div. LEXIS 2522 (N.Y. Ct. App. 1995).

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Opinion

—Judgment, Supreme Court, New York County (Walter M. Schackman, J.), entered October 14, 1993, dismissing the petition brought pursuant to CPLR article 78 to annul respondents’ determination terminating petitioner as a Correction Officer, unanimously affirmed, without costs.

Petitioner, a Correction Officer, had entered into a plea agreement with respondent in settlement of disciplinary charges which alleged her failure to comply with sick leave regulations, and, that she forged documentation to conceal these violations. The agreement, which petitioner entered into upon the advice of counsel, inter alia, extended her probationary period one year, from March 9, 1992 to March 9, 1993, and waived her rights to a hearing and appeal under Civil Service Law § 75. Petitioner, while on sick leave from a June 2, 1992 line of duty injury, again violated the Department’s sick leave regulations and was summarily terminated on February 12, 1993, before the expiration of her extended probation.

Petitioner’s claimed unawareness of the terms of the plea agreement is disingenuous in light of the fact that it was executed by her upon the advice of her attorney. Petitioner [191]*191has failed to otherwise demonstrate that the plea agreement, which served as consideration for curtailment of the pending disciplinary proceedings, was not voluntary or not knowingly accomplished (Whitehead v State of N. Y., Dept. of Mental Hygiene, 71 AD2d 653, 654, affd 51 NY2d 781), and thus, it constitutes a valid, enforceable contract (see, Matter of Shannon v State ofN. Y. Dept. of Correctional Servs., 131 AD2d 915, 916, lv denied 70 NY2d 607).

As a probationary employee, petitioner was not entitled to a hearing or a statement of reasons upon being terminated in the absence of any demonstration that her dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law (Matter of York v McGuire, 63 NY2d 760). Petitioner’s conclusory assertions that her termination was discriminatorily based are unsupported. Thus, petitioner has failed to meet her burden of showing that the respondent’s determination to terminate her was made in bad faith (Matter of Johnson v Katz, 68 NY2d 649). In addition, we note that there was a demonstrably rational basis for petitioner’s termination. Concur—Rosenberger, J. P., Ellerin, Wallach and Tom, JJ.

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—Judgment, Supreme Court, New York County (Walter M. Schackman, J.), entered October 14, 1993, dismissing the petition brought pursuant to CPLR article 78 to annul respondents’ determination terminating petitioner as a Correction Officer, unanimously affirmed, without costs.

Petitioner, a Correction Officer, had entered into a plea agreement with respondent in settlement of disciplinary charges which alleged her failure to comply with sick leave regulations, and, that she forged documentation to conceal these violations. The agreement, which petitioner entered into upon the advice of counsel, inter alia, extended her probationary period one year, from March 9, 1992 to March 9, 1993, and waived her rights to a hearing and appeal under Civil Service Law § 75. Petitioner, while on sick leave from a June 2, 1992 line of duty injury, again violated the Department’s sick leave regulations and was summarily terminated on February 12, 1993, before the expiration of her extended probation.

Petitioner’s claimed unawareness of the terms of the plea agreement is disingenuous in light of the fact that it was executed by her upon the advice of her attorney. Petitioner [191]*191has failed to otherwise demonstrate that the plea agreement, which served as consideration for curtailment of the pending disciplinary proceedings, was not voluntary or not knowingly accomplished (Whitehead v State of N. Y., Dept. of Mental Hygiene, 71 AD2d 653, 654, affd 51 NY2d 781), and thus, it constitutes a valid, enforceable contract (see, Matter of Shannon v State ofN. Y. Dept. of Correctional Servs., 131 AD2d 915, 916, lv denied 70 NY2d 607).

As a probationary employee, petitioner was not entitled to a hearing or a statement of reasons upon being terminated in the absence of any demonstration that her dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law (Matter of York v McGuire, 63 NY2d 760). Petitioner’s conclusory assertions that her termination was discriminatorily based are unsupported. Thus, petitioner has failed to meet her burden of showing that the respondent’s determination to terminate her was made in bad faith (Matter of Johnson v Katz, 68 NY2d 649). In addition, we note that there was a demonstrably rational basis for petitioner’s termination. Concur—Rosenberger, J. P., Ellerin, Wallach and Tom, JJ.

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213 A.D.2d 190, 625 N.Y.S.2d 2, 1995 N.Y. App. Div. LEXIS 2522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-abate-nyappdiv-1995.

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