Matter of Davids v City of New York

Matter of Davids v City of New York 2010 NY Slip Op 03247 [72 AD3d 557] April 22, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

In the Matter of Joseph Davids, Appellant,
v
City of New York et al., Respondents.

—[*1] Seelig & Ungaro, LLP, New York (Philip H. Seelig of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered March 26, 2009, which denied the petition seeking, inter alia, to annul respondents' determination demoting petitioner from the rank of probationary captain to his permanent title of lieutenant, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The record discloses a rational basis for petitioner's demotion, as the evidence amply supports the conclusion that his job performance was unsatisfactory (see Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]). Petitioner did not meet his burden of establishing that the demotion was made in bad faith (see e.g. Matter of Chow v City of N.Y. Dept. of Health, 303 AD2d 237 [2003]). Although respondents technically failed to follow the procedures for conducting and preparing petitioner's performance evaluations, the delays were undertaken in an attempt to provide petitioner with time to bring his performance up to department standards and did not evince bad faith (see e.g. Matter of Smith v City of New York, 118 Misc 2d 227 [1983]).

We have considered petitioner's remaining arguments and find them unavailing. Concur—Tom, J.P., Mazzarelli, Acosta, DeGrasse and Richter, JJ. [Prior Case History: 2009 NY Slip Op 30581(U).]