May 3, 2019

Terminating an employee in the Classified Service of New York State or a political subdivision of New York State during his or her probationary period


Typically employees appointed to positions in the classified service* of the State of New York or a political subdivision of the State are subject to their satisfactory completion a probationary period defined in terms of a "minimum period of probation" and a "maximum period of probation."

New York courts have ruled that if the probationer appointed to a position in the Classified Service has not yet completed his or her minimum period probation he or she may not be summarily terminated from the position but is entitled to a  “notice and a  disciplinary hearing” as though he or she held "tenure in the position" on the rationale that a probationary employee is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.**

On the other hand, a probationary employee serving a position in the Classified Service may be summarily terminated at any time after completing his or her minimum period of probation prior to completing his or her maximum period of probation without notice and hearing*** unless otherwise provided by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. 

A fire district terminated a probationary firefighter [PF] shortly before the expiration of his probationary period. PF challenged his dismissal by filing a petition pursuant to CPLR Article 78 seeking judicial review the fire district's decision to terminate his employment. The Supreme Court denied PF's petition and dismissed the proceeding. PF appealed the Supreme Court's ruling.

Citing Swinton v Safir, 93 NY2d 758, the Appellate Division, sustaining the lower court's decision, explained that judicial review of the dismissal of a probationary employee is limited to whether the dismissal was [1] made in bad faith; [2] for a constitutionally impermissible purpose; or [3] in violation of statutory or decisional law. Accordingly, only if the dismissed probationary employee raises a material issue of fact as to whether the dismissal was made in bad faith, or for an illegal reason, or in violation of law, his or her employment may be terminated without a hearing or a statement of reasons for his or her dismissal from the position.

Further, opined the Appellate Division quoting from Petkewicz v Allers, 137 AD3d at 1045, the probationer has "the burden of raising a material issue as to bad faith or illegal reasons, and conclusory allegations of misconduct or unlawfulness are insufficient to meet this burden."

The opinion notes that PF failed to raise a material issue as to bad faith or any other improper reason for his termination and that the record demonstrates that "the termination had a rational basis and that [PF's] allegations to the contrary were speculative or conclusory."

* See §§40 - 45 of the Civil Service Law

** McKee v Jackson, 152 AD2d 54

*** Gray v Bronx Developmental Center, 65 NY2d 904

The decision is posted on the Internet at:


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