Matter of Bruscino v Kelly

Matter of Matter of Bruscino v Kelly 2012 NY Slip Op 03516 Decided on May 3, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 3, 2012
Saxe, J.P., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ.
7525 110244/09

[*1]In re Severio L. Bruscino, Petitioner-Appellant,

v

Raymond W. Kelly, as Police Commissioner of the City of New York, et al., Respondents-Respondents.




Robert G. Del Grosso, Mineola, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Lisa A.
Giunta of counsel), for respondents.

Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered June 30, 2010, dismissing an article 78 petition seeking to annul respondents' determination, dated March 23, 2009, which terminated petitioner's probationary employment as a police officer, unanimously affirmed, without costs.

Supreme Court properly determined that the petition failed to state a claim. Respondents are entitled to discharge a probationary police officer "for almost any reason, or for no reason at all' as long as it is not in bad faith or for an improper or impermissible reason'" (Matter of Duncan v Kelly, 9 NY3d 1024, 1025 [2008], quoting Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]; see Matter of Berenhaus v Ward, 70 NY2d 436, 445 [1987]). At its essence, the petition alleges that petitioner's failure to disclose the psychological treatment he underwent at the age of six was inadvertent. However, even if petitioner was " ignorant' or unaware' of or oblivious'" to his personal history, respondents are entitled, given the broad discretion with which they are vested, to deem "such omissions a[s] material to his qualifications" (Matter of Roman v Brown, 202 AD2d 321, 321 [1994], lv denied 83 NY2d 760 [1994]). Even assuming the truth of the petition's allegations, the petition fails to allege any facts that would, if proven to be true, constitute a violation of "statute or policies established by decisional law" (Matter of Talamo v Murphy, 38 NY2d 637, 639 [1976]; see Matter of York v McGuire, 63 NY2d 760 [*2][1984]). Petitioner has also failed to allege facts supporting a conclusion that his termination was in bad faith. Given this failure, a hearing to resolve the truth of the facts alleged is unnecessary (see Matter of Bienz v Kelly, 73 AD3d 489 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 3, 2012

CLERK