Plaintiff's CPLR Article 78 petition seeking a court order annulling employer's decision to discontinue the services of a probationary employee rejected

Supreme Court denied Plaintiff's petition seeking to obtain a court order annulling the New York City Department of Education's [DOE] decision to discontinue Plaintiff's probationary employment, rejecting Plaintiff's argument that her termination was made in retaliation for her filing a complaint with Office of Equal Opportunity. Plaintiff appealed, but the Appellate Division unanimously affirmed the Supreme Courts decision.

The Appellate Division explained that Petitioner's challenge of the lower court's decision to discontinue her probationary employment was properly denied as Plaintiff failed to show that her termination before the completion of her maximum period of probation:

a. Was for a constitutionally impermissible purpose; or

b. Was in violation of law; or

c. Was made in bad faith.

The Appellate Division opined that Plaintiff's argument that her termination was in retaliation for filing a complaint with the Office of Equal Opportunity was speculative, given the evidence of her misconduct, insubordination, and performance issues which had been discussed with her at meetings with administrative officials and her union representative which predated her filing of her Human Rights Law complaint. The Court held that that the record supports the conclusion that DOE's decision to terminate Plaintiff's probationary employment was due to Plaintiff's professional misconduct and insubordination. 

Addressing Plaintiff's "motion to renew" presented to Supreme Court, the Appellate Division said that Supreme Court "providently denied the motion to renew" because Plaintiff did not present any new evidence that could not have been presented in [the Plaintiff's] petition or that would have rendered a different result".

The Appellate Division noted that "No appeal lies from that part of the Supreme Court's order which denied [Plaintiff's] motion to reargue."

Click HERE to access the Appellate Division's decision posted on the Internet.

Circumstantial evidence considered by the hearing officer in a Civil Service Law Section 75 disciplinary action

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Michael D.Turilli recommended termination of employment for a correction officer [Respondent] he found had engaged in undue familiarity by facilitating the transfer of contraband between detainees. 

Citing OATH Index No. 1593/20 (Sept. 28, 2020), adopted, Comm’r Dec. (Dec. 16, 2020), aff’d, NYC Civ. Serv. Comm’n Case No. 2020-0810, in which the then presiding ALJ held that “A finding based entirely on circumstantial evidence may be established in a Civil Service disciplinary proceeding so long as the circumstantial evidence supports the conclusion that ‘the inference drawn is the only one that is fair and reasonable'”, in the instant disciplinary action Judge Turilli noted that there was circumstantial evidence of:

a. Respondent’s surreptitious retrieval and delivery of the items captured on video;

b. Respondent's concealment of his actions on official logbooks; and

c. An audio recording of conversations between the detainees involved.

The ALJ concluded that Respondent knew that the box and the envelope had come from a detainee in the restricted housing area and that Respondent knowingly transported the contraband to another housing area. In addition, Judge Turilli said that Respondent’s denial of knowledge was uncorroborated, self-serving, and not credible. 

Judge Turilli recommended that the appointing authority terminate Respondent's employment, finding that neither Respondent’s disciplinary history nor the lack of evidence regarding the contents of the box and envelope warranted a lesser penalty. 

Click HERE to access Judge Turilli's decision posted on the Internet.

Discrete acts of a school board over a period of time alleged to constitute misconduct fail to establish a continuing wrong

Observing that the "discrete acts of misconduct" described by Petitioner in her petition and which allegedly took place between January 2025 and September 2025, each of these acts having occurred more than 30 days prior to service of the Plaintiff's petition, the Commissioner of Education found that such acts, in the aggregate, did not constitute a continuing wrong.

The Commissioner explained that:

1. With respect to the challenged contracts, the Commissioner said it has been consistently held that the 30-day time limitation set for filing such appeals “commences upon the award[ing] of [a] contract”; and 

2.  It has been consistently held that events "like school elections and board meetings" also trigger unique and independent 30-day time limitations.

Accordingly, the Commissioner found that Petitioner’s claims were untimely and must be dismissed, indicating that "[in] light of this determination, [she] need not address the parties’ remaining contentions".

Click HERE to access the Commissioner's decision posted on the Internet.