Smith v. Abate

212 A.D.2d 449, 622 N.Y.S.2d 725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1995
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Stuart Cohen, J.), entered on or about January 5, 1994, which denied petitioner’s application pursuant to CPLR article 78 to annul respondents’ determination terminating petitioner’s employment as a probationary correction officer, and dismissed the petition, unanimously affirmed, without costs.

Petitioner’s probationary employment as a correction officer was terminated after he tested positive for cocaine in a random urinalysis test. Such testing is constitutionally permissible (Matter of McKenzie v Jackson, 75 NY2d 995). The affidavits of petitioner and his half-brother that the half-brother "spiked” petitioner’s drink with cocaine the night before the test because petitioner had refused to give the half-brother money, while perhaps sufficient to raise an issue of unknowing ingestion were petitioner a tenured employee (cf., e.g., Matter of Harmon v New York City Police Dept., 188 AD2d 429, lv denied 82 NY2d 652), are insufficient to raise an issue of bad faith necessary to warrant a hearing into the termination of a probationary employee (Matter of Soto v Koehler, 171 AD2d 567, 568, lv denied 78 NY2d 855). ConcurWallach, J. P., Rubin, Ross, Asch and Mazzarelli, JJ.