Opinion
INDEX 159251/2021
04-04-2022
TIMOTHY RYAN, Petitioner, v. DERMOT SHEA, NEW YORK CITY POLICE DEPARTMET, THE CITY OF NEW YORK Respondent. MOTION SEQ. No. 001
HON. CAROL EDMEAD JUDGE
Unpublished Opinion
MOTION DATE 03/22/2022
DECISION + ORDER ON MOTION
HON. CAROL EDMEAD JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)_. Upon the foregoing documents, it is
ORDERED AND ADJUDGED that the petition for relief, pursuant to CPLR Article 78, of petitioner Timothy Ryan (motion sequence number 001) is denied; and it is further
ORDERED AND ADJUDGED that the cross motion, pursuant to CPLR 3211 (a) (7), of the respondents Dermot Shea, as Police Commissioner of the City of New York, the Police Department of the City of New York (motion sequence number 001) is granted and this proceeding is dismissed; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that counsel for respondents shall serve a copy of this order, along with notice of entry, on all parties within ten (10) days. 1
In this Article 78 proceeding, petitioner Timothy Ryan (Ryan) seeks a judgment to overturn the decision of the respondents Police Department of the City of New York (NYPD) and Commissioner Dermot Shea (Commissioner) terminating his employment, and respondents cross-move to dismiss his petition (together, motion sequence number 001). For the following reasons, the petition is denied, the cross motion is granted and the proceeding is dismissed.
FACTS
Ryan was employed as an NYPD officer from July 11, 2005 until his dismissal on June 11, 2021. See verified petition, Ryan aff, ¶¶1, 34. On July 31, 2019, the NYPD filed disciplinary charges and specifications against Ryan for engaging in conduct which violated several NYPD policies. See notice of cross motion, exhibit 1. Rather than face a departmental disciplinary hearing on those charges and specifications, Ryan instead executed a negotiated settlement agreement (NSA) with the NYPD which required him to forfeit 30 vacation days, and to be placed on "dismissal probation" for a period of one (1) year, effective November 4, 2020. Id., exhibit 2. The relevant portions of the NSA provide as follows:
"I understand that if this Negotiated Settlement is approved by the Police Commissioner, the penalty against me will be as follows:
"I shall forfeit Thirty (30) vacation days;
"and
"Dismissal from the New York City Police Department; however, judgment is suspended, and I will be placed on Dismissal Probation for a period of one (1) year. I understand that the Police Commissioner may impose punishment of dismissal or any lesser penalty deemed appropriate at any time during such period. This period of probation shall commence upon the approval of this Negotiated Settlement by the Police Commissioner.
* * *
"If this Negotiated Settlement is approved by the Police Commissioner, I accept said decision, and as a condition of accepting such decision of the Police Commissioner, I hereby waive any and all rights granted to me under all applicable laws of the City and State of New York." Id.; exhibit 2. Ryan signed both the NSA and a separate letter acknowledging its terms. Id., exhibit 2; verified petition, exhibit B.2
On May 4, 2021, during Ryan's period of dismissal probation, the NYPD filed new charges and specifications against him relating to a telephone altercation that he had with a superior officer on February 16, 2021. See notice of cross motion, exhibit 3. When he reported to work on June 11, 2021, Ryan was informed that he had been terminated. See verified petition, Ryan aff, ¶ 43. He then received a letter from the NYPD Commissioner's office, dated June 12, 2021, that formally dismissed him from employment (the dismissal letter). Id., exhibit C.
Ryan subsequently commenced this Article 78 proceeding on October 8, 2021. See verified petition. After stipulating to several extensions, the NYPD filed its cross motion to dismiss on February 15, 2022. See notice of cross motion. With the filing of opposition and reply papers, this matter is now fully submitted (together, motion sequence number 001).
DISCUSSION
Normally, the court's role in an Article 78 proceeding is to determine, upon the facts before an administrative agency, whether a challenged agency determination had a rational basis in the record or was arbitrary and capricious. See Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222 (1974); Matter of E.G. A. Assoc, v New York State Div. of Hous. & Community Renewal, 232 A.D.2d 302 (1st Dept 1996). An agency's determination will only be found arbitrary and capricious where it is "without sound basis in reason, and in disregard of. . . the facts." Matter of Century Operating Corp. v Popolizio, 60 N.Y.2d 483, 488 (1983), citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d at 231. Conversely, if there is a rational basis in the administrative record that supports the agency's determination, there can be no judicial interference. Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 3 34 N.Y.2d at 231-232. However, this Article 78 proceeding does not require judicial review under the normal arbitrary and capricious analysis.
The Appellate Division, First Department, recently reiterated the rule that:
"It is well settled that '[a] probationary employee may be terminated without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith' (Matter of Verma v Department of Educ. of the City of N.Y., 192 A.D.3d 616, 616 [1st Dept 2021]; see Matter of Mendez v New York City Dept. of Educ, 28 N.Y.3d 993, 994 [2016]; Matter of York v McGuire, 63 N.Y.2d 760, 761 [1984]). This standard applies where ... a police officer has been placed 'on dismissal probation in accordance with a negotiated resolution of disciplinary charges' (Matter of Cipolla v Kelly, 26 A.D.3d 171, 171 [1st Dept 2006])."Matter of Ahmed v O'Neill, 198 A.D.3d 471, 472 (1st Dept 2021). Here, Ryan was dismissed on June 11, 2021, which date fell during his period of dismissal termination from November 4, 2020 and November 4, 2021. His dismissal was therefore presumptively valid, unless he can demonstrate that the NYPD acted "unlawfully or in bad faith." The court finds that he has failed to do so.
The First Department has long held that:
"While a hearing may be necessary in those instances where an issue of a substantial nature is raised regarding the probationary employee's dismissal (Matter of Beacham v Brown, 215 A.D.2d 334 [1st Dept 1995], Iv denied 87 N.Y.2d 801 [1995]; Matter of Miciotta v McMickens, 118 A.D.2d 489, 491 [1st Dept 1986]), the burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason (Matter of Cipolla v Kelly, 26 A.D.3d 171 [1st Dept 2006]; Matter of Beacham v Brown, 215 A.D.2d at 334), and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden (Matter of Green vBd. of Educ. of the City Dist. of N.Y, 262 A.D.2d 411, 412 [2d Dept 1999];Matter of Garcia v New York City Probation Dept., 208 A.D.2d 475, 476 [1st Dept 1994]; Matter of Cortijo v Ward, 158 A.D.2d 345 [1st Dept 1990])." Matter of Che Lin Tsao v Kelly, 28 A.D.3d 320, 321 (1st Dept 2006). Here, Ryan asserts that, on February 16, 2021, he was "under no obligation to call [the NYPD] Absence Control [office] prior to leaving his residence outside his scheduled tour" to take his elderly father to a medical appointment, but that he made the call "out of an abundance of caution as he was worried that he would not be back at his residence" before his daily tour began. See petitioner's mem of law in 4 opposition at 4-5. He also asserts that the superior officer who answered the call "ordered [him] to report to the [NYPD's] Medical Division within thirty minutes," and that "this order was not based in any legitimate business purpose and set [him] up to fail." Id. Ryan concludes that "[t]his unlawful order was meant to punish [him] for being out sick, and thus was in bad faith." Id. at 1. In the affidavit accompanying his petition, Ryan admits that he used foul and abusive language at the superior officer, which was evidently the basis for the May 4, 2021 charges and specifications that the NYPD filed against him. See verified petition, exhibit A (Ryan aff), ¶¶25-26. The foregoing allegations are clearly (a) no more than speculative and conclusory claims that his superior officer was acting in bad faith on May 4, 2021, and (b) an acknowledgement that the charges and specifications which the NYPS filed against him as a result of the phone call were accurate. Ryan's allegations are hardly sufficient to raise a "substantial issue" that the NYPD acted in bad faith. Matter of Che Lin Tsao v Kelly, 28 A.D.3d at 321; see also Matter of Leka v New York City Law Dept., 160 A.D.3d 497 (1st Dept 2018). In fact, they furnish proof that the NYPD had a good faith basis for terminating his probationary employment. See e.g., Matter of Foley v O'Neill, 200 A.D.3d 609, 610 (1st Dept 2021), citing Matter of Swinton v Safir, 93 N.Y.2d 758, 761-763 (1999); Matter of Morrison v New York City Dept. of Corr., 198 A.D.3d 537 (1st Dept 2021); Matter of Adelana v New York City Dept. of Educ, 194 A.D.3d 463 (1st Dept 2021). As a result, the court concludes that Ryan has failed to meet the burden of proof specified in the governing First Department precedent, and that his Article 78 petition therefore lacks merit.
Accordingly, the court concludes that Ryan's Article 78 petition should be denied, and that respondents' cross motion to dismiss it pursuant to CPLR 3211 (a) (7) for failure to state a claim should consequently be granted. 5
DECISION
ACCORDINGLY, for the foregoing reasons it is hereby
ORDERED AND ADJUDGED that the petition for relief, pursuant to CPLR Article 78, of petitioner Timothy Ryan (motion sequence number 001) is denied; and it is further
ORDERED AND ADJUDGED that the cross motion, pursuant to CPLR 3211 (a) (7), of the respondents Dermot Shea, as Police Commissioner of the City of New York, the Police Department of the City of New York (motion sequence number 001) is granted and this proceeding is dismissed; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that counsel for respondents shall serve a copy of this order, along with notice of entry, on all parties within ten (10) days. 6