New York State's Military Law provides certain benefits to a public employee "deployed on military service" before completing his or her probationary period

The Appellate Division reversed Supreme Court's denial of the CPLR Article 78 petition filed by a New York City police officer [Petitioner] seeking reinstatement to her position after the New York City Police Department [Department] terminated her employment as a probationary police officer.

Petitioner was appointed as a probationary police officer in July 2012. In February 2014, before her two-year probationary period had been completed, Probationer was placed on "restricted duty," after the Department became aware of facts suggesting she had not disclosed certain aspects of her medical history, diagnoses and treatment on application forms and her term of her probationary period was extended. 

In August 2014, while Petitioner was on "restricted duty" and still serving as a probationary employee, she was deployed on military duty and was placed on military leave by the Department. While Petitioner was on such military leave, the Police Commissioner approved recommendations to terminate Petitioner's employment with the Department. Upon her return from military duty in June 2016, Probationer was informed that "her probationary employment was summarily terminated."

Petitioner contended that the Department could not summarily terminate her employment as she had attained tenure in the position while she was absent on military leave and thus was entitled to "notice and hearing" on disciplinary charges before she could be terminated from her position.

The Appellate Division, citing 55 RCNY 5.2.2[b], agreed with Petitioner, explaining that New York City's personnel rules provide that "[s]ubject to the provisions of the [M]ilitary [L]aw," the computation of a probationary period is based on time the employee is "on the job in a pay status." The court noted that the City's personnel rules also provide that, notwithstanding rule 5.2.2, the probationary period will be extended while a probationer "does not perform the duties of the position."

However, opined the Appellate Division, the rules relied on by the Department are expressly subject to Military Law §243(9), which provides, in pertinent part, "that if a probationary employee is deployed on military duty before the expiration of his or her probationary period", the time he or she is absent on military duty shall be credited as satisfactory service during such probationary period." In addition, said the court, "§243(9) does not distinguish between probationers on restricted or modified duty and those on full duty status at the time of deployment, or give an appointing authority discretion to distinguish between such types of probationers."

The Appellate Division, reversing the Supreme Court's decision "on the law", granted the Article 78 petition and remanded the matter "for further proceedings consistent herewith," indicated that its "decision does not foreclose further action by [the Department]." This statement may be alluding to the possibility of the Department's undertaking action addressing the issue concerning the Petitioner having been placed on "restricted duty" after the Department learned that she may not have disclosed certain facts on her employment  application forms.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03277.htm