Matter of Swindell v Antonelli

Matter of Swindell v Antonelli 2010 NY Slip Op 08346 [78 AD3d 472] November 16, 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 Tajiri Swindell, Respondent,
v
John Antonelli, Acting Commissioner of the New York City Department of Correction, et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for appellants.

Koehler & Isaacs, LLP, New York (Mercedes M. Maldonado of counsel), for respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about November 20, 2009, which directed a hearing pursuant to CPLR 7804 (h) on petitioner's claim that respondents' denial of her promotion to captain was made in bad faith, and, pending the hearing, temporarily restrained respondent Department of Correction from certifying a new promotional list for captain, unanimously reversed, on the law, without costs, the direction for a hearing vacated and the petition dismissed.

In light of the open confidential investigation, the decision not to promote petitioner was rational, reasonable, and made in good faith. Petitioner's allegations to the contrary were conclusory and speculative (see Matter of Gomez v Hernandez, 50 AD3d 404, 404 [2008]), and she is not entitled to a hearing on her claims. Since no hearing is warranted, it is unnecessary to address respondents' contentions regarding the propriety of requiring a representative of the Department of Investigations to testify at any such hearing. Concur—Gonzalez, P.J., Friedman, DeGrasse and Manzanet-Daniels, JJ.