Matter of Flores v Doherty

Matter of Flores v Doherty 2010 NY Slip Op 01687 [71 AD3d 405] March 2, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

In the Matter of Joseph Flores, Respondent,
v
John J. Doherty, as Commissioner of the Department of Sanitation of the City of New York, et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for appellants.

Kirschner & Cohen, P.C., Great Neck (Allen Cohen of counsel), for respondent.

Judgment, Supreme Court, New York County (Doris Ling-Cohan, J.), entered February 11, 2009, which granted the petition to vacate the Commissioner's determination to terminate probationary employment to the extent of remanding the matter to the Department of Sanitation (DOS) for further proceedings to consider additional evidence, unanimously reversed, on the law, without costs, the petition denied and the proceeding dismissed.

DOS established that petitioner's six time and leave violations, which were incurred during the first four months of his probationary period, prior to his seeking treatment for substance abuse, constituted a good faith, rational basis for his termination (see Matter of Mitchell v Sielaff, 196 AD2d 692 [1993]). Moreover, petitioner failed to establish bad faith or discrimination on the part of the DOS. He had not sought help for substance abuse prior to the recommendation and issuance of his termination. He failed to establish that DOS was even aware of his substance abuse prior to his termination, and he did not establish that he was a rehabilitated or rehabilitating alcoholic at the time of his termination (see Riddick v City of New York, 4 AD3d 242, 245-246 [2004]; cf. Matter of McEniry v Landi, 84 NY2d 554 [1994]). The record was sufficient to enable the court to render a final judgment on the merits, obviating the necessity to remit for further administrative proceedings (see Matter of Police Benevolent Assn. of N.Y. State Troopers v Vacco, 253 AD2d 920, 921 [1998], lv denied 92 NY2d 818 [1998]). [*2]

We have considered petitioner's remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Saxe, McGuire, Acosta and Abdus-Salaam, JJ.