Matter of Santiago v Horn

Matter of Santiago v Horn 2007 NY Slip Op 01405 [37 AD3d 307] February 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

In the Matter of Danaci Santiago, Appellant,
v
Martin F. Horn, as Commissioner of the New York City Department of Correction, et al., Respondents.

—[*1] Olonoff, Asen & Serebro, LLP, New York (Michael Ira Asen of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Rosalyn Richter, J.), entered September 6, 2005, which granted the respondents' cross motion to dismiss this proceeding, and order, same court and Justice, entered on or about May 24, 2006, which, to the extent appealable, denied petitioner's motion to renew the earlier disposition, unanimously affirmed, without costs.

Petitioner, who was on probation for prior misconduct, failed to sustain his burden of establishing by competent evidence that his termination as a correction officer was in bad faith or for illegal reasons (see Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]). Indeed, his lateness and absenteeism, both of which were admitted in his petition, provided a proper basis for dismissal of the proceeding (Matter of Nelson v Abate, 205 AD2d 454 [1994]). Furthermore, the rule cited in petitioner's renewal motion does not require respondent to wait until completion of the initial probationary term before dismissing a probationary employee. Concur—Tom, J.P., Saxe, Sweeny, Malone and Kavanagh, JJ.