Matter of Lambert v Kelly

Matter of Lambert v Kelly 2010 NY Slip Op 08618 [78 AD3d 554] November 23, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of Yolanda Lambert, Appellant,
v
Raymond W. Kelly, as Commissioner of the New York City Police Department, et al., Respondents.

—[*1] Worth, Longworth & London, LLP, New York (Howard B. Sterinbach of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Alan G. Krams of counsel), for respondents.

Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered November 27, 2009, dismissing this proceeding, unanimously affirmed, without costs.

It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law (Matter of Witherspoon v Horn, 19 AD3d 250 [2005]). Moreover, the burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement.

Petitioner did not produce competent proof that she was terminated for an impermissible reason. In fact, the record discloses a rational basis for the challenged determination. There is evidence that petitioner had committed numerous violations of New York Police Department regulations, and that the discharge was made in good faith. In particular, her illegally parked personal vehicle displayed an expired police parking permit that did not belong to her. She then used her position as an officer to try to get special treatment from the marshal in retrieving the vehicle (see Matter of Batista v Kelly, 16 AD3d 182 [2005]).

There is no evidence that petitioner was dismissed in order to frustrate her receipt of vested interest retirement benefits. Concur—Gonzalez, P.J., Tom, Sweeny, Richter and Manzanet-Daniels, JJ.