Matter of Rivera v O'Neill

Matter of Rivera v O'Neill 2021 NY Slip Op 03390 Decided on May 27, 2021 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 and Entered: May 27, 2021
Before: Kapnick, J.P., Mazzarelli, Moulton, Mendez, JJ.
Index No. 100936/19 Appeal No. 13928 Case No. 2020-03311

[*1]In the Matter of Christopher Rivera, Petitioner-Appellant,

v

James P. O'Neill, as Police Commissioner of the City of New York, et al., Respondents-Respondents.

Law Office of Michael H. Joseph, PLLC, White Plains (John V. Tait of counsel), for appellant.

James E. Johnson, Corporation Counsel, New York (Nwamaka Ejebe of counsel), for respondents.

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered January 28, 2020, denying the petition to annul respondents' determination dated April 5, 2019, which terminated petitioner's employment as a New York City police officer, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner, who was on dismissal probation at the time his employment as a police officer was terminated, failed to demonstrate that respondents dismissed him to frustrate his application for Accidental Disability Retirement (ADR) benefits, i.e., in bad faith (see Matter of Cipolla v Kelly, 26 AD3d 171 [1st Dept 2006]; Matter of Lingard v Kerik, 303 AD2d 286 [1st Dept 2003], lv denied 100 NY2d 507 [2003]). His dismissal was recommended after ADR benefits had been denied him. Any delays in the dismissal were explained by the NYPD investigation, which took months to complete (see Lingard, 303 AD2d 286). The court properly considered the documentary evidence attached to respondents' motion to dismiss (see WFB Telecom. v NYNEX Corp., 188 AD2d 257, 258-259 [1st Dept 1992], lv denied 81 NY2d 709 [1993]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 27, 2021