Opinion
April 27, 1971
Appeal from a judgment of the Supreme Court at Special Term, entered August 14, 1970 in Albany County, which dismissed petitioner's application, in a proceeding under CPLR article 78, to vacate an order issued by the Commissioner of the Department of Agriculture and Markets terminating petitioner's services as a Meat Inspector Trainee. Upon passing a civil service examination, petitioner was appointed on August 12, 1969 as a Meat Inspector Trainee in the Department of Agriculture and Markets with a probationary period of one year. While assigned to work at a provision company under supervision of a Senior Meat Inspector, an evaluation was made by a regional supervisor on January 14, 1970 stating that petitioner's performance had not been satisfactory because, contrary to various rules, regulations and statutes, he failed to reinspect properly substandard products and allowed them to leave the plant without condemnation, allowed nitrites to be 39 pounds off on inventory, allowed management to use an unsanitary area, allowed men to work on scaffolds in a product area creating dust and dirt without protecting the product and failed to face up to management in obtaining compliance in sanitation. Other critical evaluations were made and filed and petitioner admits that on one occasion he gave the plant manager two State inspection seals, said possession being in violation of section 96-r Agric. Mkts. of the Agriculture and Markets Law. On January 23, 1970 notice was sent to petitioner by certified mail that his performance during the probationary period had been unsatisfactory and that his services would be terminated on January 30, 1970. In the absence of a specified minimum period of service in the examination announcement and under subdivision (b) of section 4.5 of the Rules for the Classified Service ( 4 NYCRR 4.5 [b]), the employment of petitioner, a probationer, could have been "terminated at any time" after the completion of 12 weeks of service and on or before the completion of the term of training service, in this case one year, "If the conduct or performance of the probationer [was] not satisfactory." If the conduct or performance of the probationer is not in good faith satisfactory, the appointing power may dismiss during the prescribed period such an appointee with the same freedom of judgment as he could have appointed one of the persons certified in the first instance ( Matter of Voll v. Helbing, 256 App. Div. 44, 46, app. dsmd. 294 N.Y. 653). Within the bounds of said section 4.5, respondent Commissioner had the right to discharge petitioner without a hearing and the courts will not review the discretion of the Commissioner if exercised in good faith ( Matter of Gordon v. State Univ. of N.Y. at Buffalo, 35 A.D.2d 868; Matter of Marasco v. Morse, 9 Misc.2d 296, 300, affd. 263 App. Div. 106 3, affd. 289 N.Y. 768). The assessments of petitioner's conduct and performance and, particularly, his admitted delivery of the seals provided a just and reasonable foundation for termination and there has been no factual allegation of bad faith. The petition, answer and affidavits having demonstrated that the dismissal of this probationary employee was not arbitrary or capricious, but in good faith, Special Term was correct in not submitting the issue to a jury for determination ( Matter of Smith v. Chambers, 32 A.D.2d 949, affd. 26 N.Y.2d 876, mot. for rearg. den. 26 N.Y.2d 1020). While subdivision (i) of said rule 4.5 ( 4 NYCRR 4.5 [i]) provides that "A probationer whose services are to be terminated for unsatisfactory service shall receive written notice at least one week prior to such termination", it should be borne in mind that the primary purpose of civil service laws and rules is to promote the good of the public service, which purpose is not to be frustrated by technical or narrow constructions ( Matter of Going v. Kennedy, 5 A.D.2d 173, 184, affd. 5 N.Y.2d 900). Although petitioner did not receive the notice a full week prior to termination, the tardiness was of but a few days duration, petitioner had been notified previously orally and in writing of his unsatisfactory performance, with specifics, and there has been no showing of prejudice. While administrative indifference to the rights of employees created in Civil Service Rules for the Classified Service is not to be sanctioned, there has been substantial compliance here (cf. Matter of Going v. Kennedy, supra) and the lack of strict compliance did not create permanent tenure. This is not a situation where a probationary employee was kept beyond the probationary period without notice of termination, thus obtaining permanent status. Judgment affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur. [ 63 Misc.2d 880.]