Smith v. Chambers

32 A.D.2d 949, 303 N.Y.S.2d 722, 1969 N.Y. App. Div. LEXIS 3431

Opinion

In a proceeding pursuant to article 78 of the CPLR to annul a notice terminating petitioner’s employment as Senior Library Clerk at the Nassau Community College, the appeal is from a judgment of the Supreme Court, Nassau County, entered June 23, 1967, upon a jury verdict, which annulled the notice of termination and directed petitioner’s reinstatement to her position. (Petitioner’s cross appeal from a portion of the judgment is deemed withdrawn, in accordance with the request to such effect in her brief, without costs.) Judgment reversed, on the law, without costs; petition dismissed; and determination confirmed. The findings of fact below have not been affirmed. The petition, answer and affidavits submitted demonstrate that the dismissal of this probationary employee by the appointing officer was not arbitrary or capricious, but was in good faith. The issue should not have been submitted to a jury trial for determination (Matter of Voll v. Helbing, 256 App. Div. 44, app. dsmd. 294 N. Y. 653; Matter of Croft v. McGinnis, 24 Misc 2d 235). Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuseello, JJ., concur.