Matter of Maleski v New York City Dept. of Educ.

Matter of Maleski v New York City Dept. of Educ. 2016 NY Slip Op 02588 Decided on April 5, 2016 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 April 5, 2016
Tom, J.P., Friedman, Richter, Gische, Gesmer, JJ.
738 651928/13

[*1]In re Matthew Maleski, Petitioner, —

v

New York City Department of Education, Respondent.

Gregory Antollino, New York, for petitioner.

Zachary W. Carter, Corporation Counsel, New York (Amanda Sue Nichols of counsel), for respondent.

Determination of respondent New York City Department of Education dated April 29, 2013, which terminated petitioner's employment as a probationary special education teacher, unanimously confirmed, the claim brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Manuel J. Mendez, J.], entered June 12, 2014), dismissed, without costs, and the matter remanded for further proceedings on petitioner's plenary claim alleging discrimination under the New York City Human Rights Law.

A probationary employee may be terminated without a hearing, for any reason or no reason at all, as long as the dismissal is

not unlawful or in bad faith (see Matter of Che Lin Tsao v Kelly, 28 AD3d 320 [1st Dept 2006]). Here, based on the limited record before us, we find no basis to conclude that petitioner's termination was in bad faith. Petitioner's plenary claim alleging discrimination under the New York City Human Rights Law is not properly before us. The motion court transferred only the Article 78 claim and stayed the plenary claim.

We decline to consider petitioner's arguments that his termination violated the First Amendment and Labor Law § 201-d(2)(c) because he failed to raise these issues in either his original or amended pleadings (see Matter of Cherry v Horn, 66 AD3d 556, 557 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2016

CLERK