Silva v City of New York

[*1] Silva v City of New York 2012 NY Slip Op 50532(U) Decided on March 22, 2012 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 22, 2012
Supreme Court, New York County

Raymond Silva, Petitioner,

against

City of New York; New York City Department of Correction, Dora B. Schriro, Commissioner of the New York City Department of Correction, Respondents.



111213/11



For Petitioner:

Jacqueline McMickens, Esq.

Law Office of Jacqueline

McMickens & Assoc., PLLC

26 Court St, Suite 1600

Brooklyn, NY 11242

(718) 596-4877

For Respondents:

Michael A. Cardozo

Corporation Counsel of the City of New York

Of counsel: Bruce Rosenbaum,

Benajmin J. Traverse (Awaiting Admission)

100 Church St

New York, NY 10007

(2120 788-0917

Michael D. Stallman, J.

In this Article 78 proceeding, petitioner challenges the termination of his employment with New York City Department of Correction without notice and a hearing. According to petitioner, he was a tenured employee when he was notified on June 3, 2011 that he was terminated. The issue presented is whether petitioner was a probationary employee on the date that he received notice of his termination.

It is undisputed that petitioner was appointed to the New York City Department of Correction on November 20, 2008. By a Notice of Conditions of Probation dated November 14, 2008, petitioner was notified that the period of probation for each newly appointed employee is 24 months, and "may be extended by the number of days the employee does not perform the duties of the position which includes but is not limited to sick leave, annual leave, compensatory time off, medically monitored duty, absence without leave or suspension from duty without pay, etc."

(Verified Answer, Ex 3.) The Notice further states, on its last line, "I do hereby accept this appointment as Correction Officer, subject to the above conditions." (Id. [emphasis supplied].) Petitioner signed immediately below, on November 14, 2008.

The parties also do not dispute that extensions of probation are calculated pursuant

to DOC Rule 3.30.020 and Rule 5.2.8 of the Personnel Rules and Regulations of the City of New York (55 RCNY Appendix A ¶ 5.2.8). (See Verified Answer, Exs 4, 5.) It is undisputed that, at the time of petitioner's original appointment, petitioner's probationary period was scheduled to end on November 20, 2010 at the earliest.

According to respondents, petitioner did not perform the full duties of a Correction Officer due to sick leave, annual leave, compensatory time, and medically monitored return (MMR) restricted duty for a period of 166 work days between November 20, 2008 and June 3, 2011. In support of their contention, respondents submit petitioner's time sheets for 2008, 2009, 2010, and 2011. Respondents therefore argue that petitioner's probationary period was extended to July 11, 2011.

It appears that petitioner did not submit a reply contesting respondents' calculations. In his moving papers, petitioner contends that he did not miss 194 or more days of work, which is the number of days between November 20, 2010 and June 2, 2011. However, respondents calculated the extension of petitioner's probation based on work days, not calendar days. That is, respondents extended petitioner's probationary period by one work day for each day of work that petitioner missed, and did not include any calendar days [*2]which would have been regular days off.

Calculation according to work days was explicit in wording of the Notice of Conditions of Probation quoted above ("the number of days the employee does not perform the duties of the position . . . ). The quoted examples of reasons for not working are applicable only to work days, not regular days off. To interpret the clear language to mean aggregated calendar days, as petitioner urges, would be irrational and contrary to the plain meaning of the notice.

This method of calculation was not arbitrary and capricious (see Matter of Beck v Walker, 286 AD2d 996 [4th Dept 2001][ pursuant to 4 NYCRR 4.5 (g), petitioner's probationary period should have been extended one workday for every workday he missed]; cf. Tomlinson v Ward, 110 AD2d 537, 538 [1st Dept 1985], affd 66 NY2d 771 [1985] ["The purpose of excluding from the probationary term periods during which a probationer is not at work performing his or her duties is not punitive . . .It is designed to enable the appointing officer to ascertain the fitness of the probationer and to give the probationer a reasonable opportunity to demonstrate the ability to perform the duties of the office"].)

The record supports respondents' contention that, on June3, 2011, petitioner was still a probationary employee, because petitioner's probationary status was extended by a number of additional work days corresponding to the number of days that petitioner had taken sick leave, annual leave, compensatory time off, and was on MMR. Contrary to petitioner's argument, petitioner's consent was not required for an extension. The probationary period was apparently extended pursuant to DOC Rule 3.30.020 (b) and Rule 5.2.8 (b) of the Personnel Rules and Regulations of the City of New York. Unlike DOC Rule 3.30.020 (a) and Rule 5.2.8 (a) of the Personnel Rules Regulations of the City of New York, these rules do not require petitioner's consent for an extension of the probationary period. Petitioner also understood that the probationary period would be extended for the situations set forth in DOC Rule 3.30.020 (b) and Rule 5.2.8 (b) of the Personnel Rules and Regulations of the City of New York, because the Notice of Conditions of Probation substantially tracks the language of DOC Rule 3.30.020 (b). "A probationary employee may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that her termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law."

(Matter of Turner v Horn, 69 AD3d 522, 522 [1st Dept 2010].) Here, petitioner's termination was not arbitrary and capricious. Respondents had a rational basis for terminating petitioner's probationary employment due to chronic absence.

Dated:3/22/12/s/, J.S.C. [*3]

New York, New York