Skidmore v. Abate

Appellate Division of the Supreme Court of New York

Skidmore v. Abate

213 A.D.2d 259, 624 N.Y.S.2d 12, 1995 N.Y. App. Div. LEXIS 2799

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

DecidedMarch 16, 1995

StatusPublished

Cited by12 cases

This text of 213 A.D.2d 259 (Skidmore 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.

Bluebook

Skidmore v. Abate, 213 A.D.2d 259, 624 N.Y.S.2d 12, 1995 N.Y. App. Div. LEXIS 2799 (N.Y. Ct. App. 1995).

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Opinion

—Judgment (denominated an order), Supreme Court, New York County (Robert Lippmann, J.), entered October 15, 1993, which denied petitioner’s application pursuant to CPLR article 78 to annul respondents’ determination terminating petitioner’s probationary employment as a correction officer, unanimously affirmed, without costs.

Petitioner was not entitled to a hearing prior to her termination since the probationary period of her employment had been automatically extended by one day for every day that [260]*260she was absent or on limited duty (Rules of City Personnel Director [59 RCNY Appendix A] §§ 5.2.1, 5.2.8 [a], [b]; Rules of Department of Correction § 3.20.015 [a], [b]; see, Matter of Rivoli v Stern, 160 AD2d 601), and thus had not been completed by the date of her termination. Nor has petitioner sustained her burden of showing that her termination was based on a perceived disability in violation of the anti-discrimination laws. Chronic absenteeism is a sufficient basis for terminating a probationary employee (Nelson v Abate, 205 AD2d 454), and even though the absenteeism was due to a disability, a discriminatory motive will not be inferred in the absence of proof that the absenteeism did not prevent the employee from reasonably performing the duties of the position (Executive Law § 292 [21]; see, Matter of Dukelow v Lum, 112 AD2d 302). Concur—Sullivan, J. P., Ellerin, Wallach, Kupferman and Mazzarelli, JJ.

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—Judgment (denominated an order), Supreme Court, New York County (Robert Lippmann, J.), entered October 15, 1993, which denied petitioner’s application pursuant to CPLR article 78 to annul respondents’ determination terminating petitioner’s probationary employment as a correction officer, unanimously affirmed, without costs.

Petitioner was not entitled to a hearing prior to her termination since the probationary period of her employment had been automatically extended by one day for every day that [260]*260she was absent or on limited duty (Rules of City Personnel Director [59 RCNY Appendix A] §§ 5.2.1, 5.2.8 [a], [b]; Rules of Department of Correction § 3.20.015 [a], [b]; see, Matter of Rivoli v Stern, 160 AD2d 601), and thus had not been completed by the date of her termination. Nor has petitioner sustained her burden of showing that her termination was based on a perceived disability in violation of the anti-discrimination laws. Chronic absenteeism is a sufficient basis for terminating a probationary employee (Nelson v Abate, 205 AD2d 454), and even though the absenteeism was due to a disability, a discriminatory motive will not be inferred in the absence of proof that the absenteeism did not prevent the employee from reasonably performing the duties of the position (Executive Law § 292 [21]; see, Matter of Dukelow v Lum, 112 AD2d 302). Concur—Sullivan, J. P., Ellerin, Wallach, Kupferman and Mazzarelli, JJ.

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Bluebook (online)

213 A.D.2d 259, 624 N.Y.S.2d 12, 1995 N.Y. App. Div. LEXIS 2799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skidmore-v-abate-nyappdiv-1995.

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