Opinion
2013-10322, Index No. 4258/13.
2015-04-22
In the Matter of Steven GRIFFIN, appellant, v. MTA NEW YORK CITY TRANSIT AUTHORITY, respondent.
Eng, P.J., Dillon, Chambers and Barros, JJ., concur.
Nicole Salk, Brooklyn, N.Y., for appellant. Lewis S. Finkelman, Brooklyn, N.Y. (James L. Kerwin of counsel), for respondent.
RANDALL T. ENG, P.J., MARK C. DILLON, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.
In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority dated November 13, 2013, which terminated the petitioner's probationary employment as a subway conductor, the petitioner appeals from a judgment of the Supreme Court, Kings County (Schmidt, J.), dated July 11, 2013, which denied the petition and, in effect, dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
On May 21, 2012, the petitioner was appointed by the respondent as a probationary subway conductor. In October 2012, the petitioner sustained injuries in an off-duty motor vehicle accident, and was absent from work for a period of more than 21 days. As a condition of returning to work, the petitioner was required to undergo a medical evaluation, including the administration of a drug test. On November 7, 2012, the petitioner was informed that he had tested positive for cocaine, and on November 13, 2012, the respondent terminated the petitioner's employment. Thereafter, the petitioner commenced the instant CPLR article 78 proceeding.
A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that the termination was in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law ( see Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763, 697 N.Y.S.2d 869, 720 N.E.2d 89; Matter of York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838; Matter of Capece v. Schultz, 117 A.D.3d 1045, 1046, 986 N.Y.S.2d 533). Here, the petitioner failed to carry his burden of presenting competent proof of bad faith, illegal reasons, or a violation of statutory or decisional law ( see Matter of Swinton v. Safir, 93 N.Y.2d at 762–763, 697 N.Y.S.2d 869, 720 N.E.2d 89; Matter of Capece v. Schultz, 117 A.D.3d at 1046, 986 N.Y.S.2d 533; Matter of Ward v. Metropolitan Transp. Auth., 64 A.D.3d 719, 720, 883 N.Y.S.2d 282; Matter of Barry v. City of New York, 21 A.D.3d 551, 800 N.Y.S.2d 594).
Moreover, the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness ( see Trotta v. Ward, 77 N.Y.2d 827, 566 N.Y.S.2d 199, 567 N.E.2d 241; Matter of Kelly v. Scoppetta, 56 A.D.3d 475, 866 N.Y.S.2d 770; Matter of Kirk v. City of New York, 47 A.D.3d 406, 848 N.Y.S.2d 169; Matter of Barry v. City of New York, 21 A.D.3d 551, 800 N.Y.S.2d 594).
The petitioner's remaining contentions are without merit.