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May 12, 2020

Probationary employee absent from work because of an off-duty accident terminated from the position

An employee [Probationer] terminated from his position prior to the completion of his probationary period "due to his extended absence from work" initiated a CPLR Article 78 proceeding seeking court review of the determination of the appointing authority dismissing him from the position. Supreme Court dismissed Probationer's petition and Probationer appealed the court's ruling.

The Appellate Division sustained the Supreme Court's decision, explaining that "A probationary employee may "be dismissed for almost any reason, or for no reason at all". In the words of the court, citing Matter of Yonkers Firefighters v City of Yonkers, 165 AD3d 816, "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was [made] in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

The genesis of Probationer's termination was his suffering injuries in a car accident while off-duty that prevented him from working. The Appellate Division found that although Probationer's absences were due to his injuries suffered in an off-duty car accident,* the appointing authority's termination of probationer's employment on this basis was not made in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.

The court rejected Probationer's contention that the appointing authority should be estopped from terminating his employment based on its alleged promises that Probationer had one year to return to work following his injury or, in the alternative, because incorrect information had been given to Probationer with respect to his reinstatement, noting that "[e]stoppel is generally not available against a municipal defendant with regard to the exercise of its governmental functions or its correction of an administrative error."

* Section 72 of the Civil Service Law, Leave for ordinary disability, provides that an employee placed on leave by an appointing authority pursuant §72.1 may "within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission." In the event an employee placed on §72 leave is terminated from his position pursuant to §73 of the Civil Service Law, he may apply for reinstatement within one year of his recovery from the disability. Presumably the appointing authority had not placed Probationer on leave pursuant to §72.1.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_02608.htm




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