Opinion
2012-05-3
In re Severio L. BRUSCINO, Petitioner–Appellant, v. Raymond W. KELLY, as Police Commissioner of the City of New York, et al., Respondents–Respondents.
Robert G. Del Grosso, Mineola, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Lisa A. Giunta of counsel), for respondents.
Robert G. Del Grosso, Mineola, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Lisa A. Giunta of counsel), for respondents.
Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered June 30, 2010, dismissing an article 78 petition seeking to annul respondents' determination, dated March 23, 2009, which terminated petitioner's probationary employment as a police officer, unanimously affirmed, without costs.
Supreme Court properly determined that the petition failed to state a claim. Respondents are entitled to discharge a probationary police officer “for ‘almost any reason, or for no reason at all’ as long as it is not ‘in bad faith or for an improper or impermissible reason’ ” ( Matter of Duncan v. Kelly, 9 N.Y.3d 1024, 1025, 853 N.Y.S.2d 260, 882 N.E.2d 872 [2008], quoting Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763, 697 N.Y.S.2d 869, 720 N.E.2d 89 [1999]; see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 445, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ). At its essence, the petition alleges that petitioner's failure to disclose the psychological treatment he underwent at the age of six was inadvertent. However, even if petitioner was “ ‘ignorant’ or ‘unaware’ of or ‘oblivious' ” to his personal history, respondents are entitled, given the broad discretion with which they are vested, to deem “such omissions a[s] material to his qualifications” ( Matter of Roman v. Brown, 202 A.D.2d 321, 321, 609 N.Y.S.2d 209 [1994], lv. denied 83 N.Y.2d 760, 616 N.Y.S.2d 15, 639 N.E.2d 755 [1994] ). Even assuming the truth of the petition's allegations, the petition fails to allege any facts that would, if proven to be true, constitute a violation of “statute or policies established by decisional law” ( Matter of Talamo v. Murphy, 38 N.Y.2d 637, 639, 382 N.Y.S.2d 3, 345 N.E.2d 546 [1976]; see Matter of York v. McGuire, 63 N.Y.2d 760, 480 N.Y.S.2d 320, 469 N.E.2d 838 [1984] ). Petitioner has also failed to allege facts supporting a conclusion that his termination was in bad faith. Given this failure, a hearing to resolve the truth of the facts alleged is unnecessary ( see Matter of Bienz v. Kelly, 73 A.D.3d 489, 901 N.Y.S.2d 199 [2010] ).