Opinion
14365 Index No. 100202/19 Case No. 2020–01018
10-14-2021
In the Matter of Police Officer Zeeshan AHMED, Petitioner–Appellant, v. James P. O'NEILL, as Police Commissioner of the City of New York, et al., Respondents–Respondents.
Law Office of John A. Scola PLLC, New York (John A. Scola of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondents.
Law Office of John A. Scola PLLC, New York (John A. Scola of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondents.
Gische, J.P., Moulton, Gonza´lez, Kennedy, Scarpulla, JJ.
Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered August 27, 2019, which granted respondents’ cross motion to deny the petition seeking to annul their October 24, 2018 determination to summarily dismiss petitioner from the police force during his dismissal probation period, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
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, 146 N.Y.S.3d 20 [1st Dept. 2021] ; see Matter of Mendez v. New York City Dept. of Educ., 28 N.Y.3d 993, 994, 41 N.Y.S.3d 208, 63 N.E.3d 1152 [2016] ; Matter of York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838 [1984] ). This standard applies where, as here, 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, 812 N.Y.S.2d 462 [1st Dept. 2006] ).
The petitioner failed to demonstrate bad faith, because the record contains uncontroverted evidence of petitioner's admitted misconduct, which resulted in his being put on dismissal probation, as well as new disciplinary charges that were brought during the probationary period (see id. ; Matter of Cohen v. Koehler, 82 N.Y.2d 882, 884, 609 N.Y.S.2d 171, 631 N.E.2d 113 [1993] ; Matter of Loren v. New York City Dept. of Educ., 126 A.D.3d 419, 419, 5 N.Y.S.3d 53 [1st Dept. 2015] ). That some of the new charges concerned alleged misconduct predating the period of dismissal probation is of no moment (see e.g. Matter of Garrett v. Safir, 253 A.D.2d 700, 700, 677 N.Y.S.2d 570 [1st Dept. 1998], lv denied 92 N.Y.2d 817, 684 N.Y.S.2d 489, 707 N.E.2d 444 [1998] ). Further, the fact that petitioner's application for disability retirement, which he submitted before pleading guilty to the initial disciplinary charges, was later recommended for approval, "does not demonstrate his termination was in bad faith" ( Matter of Cipolla, 26 A.D.3d at 171, 812 N.Y.S.2d 462 ).
Even assuming that the "shock the conscience" standard applies to probationary terminations, the termination here does not shock the conscience (see id. ; see also Matter of Arroyo v. O'Neill, 35 N.Y.3d 1030, 1031, 126 N.Y.S.3d 449, 150 N.E.3d 27 [2020], revg 175 A.D.3d 1150, 1151–1152, 108 N.Y.S.3d 130 [1st Dept. 2019] ). Finally, contrary to petitioner's contention, equitable estoppel does not apply here, as the negotiated settlement placed him on notice that he could be dismissed at any time during the probationary period (Administrative Code of City of NY § 14–115[d]; see Matter of DePamphilis v. O'Neill, 179 A.D.3d 589, 590, 118 N.Y.S.3d 569 [1st Dept. 2020] ; Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 326, 820 N.Y.S.2d 199, 853 N.E.2d 610 [2006] ).