Matter of Bifolco v Kelly

Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

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

—[*1] Robert David Goodstein & Associates, New Rochelle (Robert David Goodstein of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered January 15, 2009, which denied petitioner's application to annul respondent Police Commissioner's determination terminating petitioner's employment as a probationary police officer, and directed entry of a judgment dismissing the proceeding, unanimously affirmed, without costs.

The record establishes that petitioner was on restricted duty from December 29, 2006 through June 18, 2007 and, therefore, his six-month disciplinary probationary term did not begin until June 19, 2007 and did not end until December 19, 2007 (see Matter of Garcia v Bratton, 90 NY2d 991, 992-993 [1997]). Because the incidents leading to petitioner's dismissal occurred on August 3, 2007, well within the probationary period, respondents could terminate petitioner without a hearing (see Matter of York v McGuire, 63 NY2d 760 [1984]; Matter of Witherspoon v Horn, 19 AD3d 250, 251 [2005]). Concur—Gonzalez, P.J., Catterson, Acosta, Richter and Abdus-Salaam, JJ.