Matter of Khanna v Bratton
Annotate this CaseDecided on May 25, 2016
Supreme Court, New York County
In the Matter of the Application of Rajesh Khanna, Tax Number 951870, Petitioner,
against
William J. Bratton, as Police Commissioner of the City of New York, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and the CITY OF NEW YORK, Respondents.
101135/14
John Tynan, Esq., Merrick, for petitioner.
Zachary W. Carter, Corporation Counsel, New York City (Alyson Maugeri, Assistant Corporation Counsel), for respondents.
Gerald Lebovits, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in reviewing respondents' cross-motion to dismiss.
PapersNumbered
Notice of Petition & Verified Petition 1
Respondents' Notice of Cross-Motion to Dismiss & Affirmation in Support2
Respondents' Memorandum of Law in Support3
Petitioner's Affirmation & Memorandum of Law in Opposition4
Respondents' Reply Memorandum of Law in Support 5
______________________________________________________________________________
Gerald Lebovits, J.
Upon the foregoing papers, it is ordered and adjudged that respondents' cross-motion to dismiss is granted. It is ordered and adjudged that the petition is dismissed.
Petitioner, Rajesh Khanna, commenced this Article 78 proceeding against respondents, William J. Bratton, as Police Commissioner of the City of New York, the Police Department of the City of New York (NYPD), and the City of New York. Petitioner seeks to annul the Commissioner's decision terminating petitioner's position as a police officer during his probationary period. Petitioner also seeks to be reinstated as a police officer with the NYPD, with full back pay, benefits, and his seniority restored. Respondents cross-move to dismiss on the basis that petitioner failed to state a cause of action. Respondents also seek costs, fees, and disbursements.
The Commissioner's decision to terminate petitioner's probationary police officer position was neither arbitrary nor capricious. A court may not annul an agency's determination [*2]unless, on review, the court finds the determination to be arbitrary and capricious: without sound basis in reason and generally taken without regard to the facts. (Matter of Pell v Bd. of Educ. of Union Free School Dist., 34 NY2d 222, 231 [1974].) An employer may dismiss a probationary employee without a hearing or a statement of reasons unless the employee demonstrates that the dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law. (Thomas v Abate, 213 AD2d 251, 251 [1st Dept 1995].) Judicial review of such a determination is limited to whether the termination was made in bad faith. (Id.) The petitioner bears the burden of raising and proving bad faith. (Id.) Mere conclusory allegations of bad faith based on speculation is insufficient to meet that burden or to require a hearing on the issue of bad faith. (Id.)
It is undisputed that petitioner was still a probationary employee when he was terminated. It is also undisputed that the NYPD was within its right to extend petitioner's probationary period. Petitioner contends that the Commissioner terminated him in bad faith. Petitioner's only support for his argument is that he believed he was cleared of any prior misconduct and that his termination was too close to the end of his probationary period. Petitioner's belief that he was cleared of his prior misconduct does not evidence the Commissioner's bad faith. The allegation is conclusory and based on speculation. The Commissioner was able terminate petitioner at any time during his probationary period.
After an internal investigation, the NYPD's Internal Affairs Bureau determined that petitioner had (1) knowingly associated with a person he reasonably believed or knew to have engaged in criminal activities; (2) assisted a Riker's Island inmate in obtaining three money orders to be used as restitution payments to secure the inmate's release from jail; (3) gave the NYPD misleading or inaccurate statements about his involvement in securing the three money orders; (4) conducted three unauthorized queries on the NYPD's database; and (5) engaged in unauthorized off-duty employment and unauthorized maintenance of a financial interest. During petitioner's official department interviews addressing these issues, petitioner made numerous inconsistent statements and was evasive with his answers. (Respondents' Cross-Motion, Exhibit 4.) The probationary monitoring committee's three board members unanimously recommended that petitioner be terminated. (Id.) The Deputy Commissioner also concluded that petitioner be terminated because petitioner's actions displayed a considerable lack of integrity and judgment. (Respondents' Cross-Motion, Exhibit 6.) Therefore, the Commissioner had sound basis in reason to terminate petitioner.
Petitioner has not met his burden of raising a substantial issue as to respondents' bad faith. Therefore, petitioner has not established a cause of action.
Respondent properly incorporated documents into its cross-motion by reference. (See Armstrong v Simon & Schuster, Inc., 85 NY2d 373, 377 n 1 [1995] [showing a complaint properly annexed and incorporated exhibits].) The court considered those documents.
ORDERED that respondents' cross-motion to dismiss is granted.
ORDERED and ADJUDGED that petitioner's petition is dismissed.
ORDERED that counsel for respondents must serve a copy of this order with notice of entry on County Clerk's office, which is directed to dismiss the petition.
This opinion is the court's decision and order.
Dated: May 25, 2016
J.S.C.
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