Opinion
2014-03604, Index No. 7464/13.
04-13-2016
In the Matter of Janine JOHNSON, appellant, v. COUNTY OF ORANGE, et al., respondents.
Sussman and Watkins, Goshen, N.Y. (Michael H. Sussman of counsel), for appellant. Langdon C. Chapman, County Attorney, Goshen, N.Y. (Sharon Worthy–Spiegel of counsel), for respondents.
Sussman and Watkins, Goshen, N.Y. (Michael H. Sussman of counsel), for appellant.
Langdon C. Chapman, County Attorney, Goshen, N.Y. (Sharon Worthy–Spiegel of counsel), for respondents.
RANDALL T. ENG, P.J., RUTH C. BALKIN, JEFFREY A. COHEN and COLLEEN D. DUFFY, JJ.
Opinion In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Orange County Sheriff, dated May 10, 2013, terminating the petitioner's probationary employment as a Deputy Sheriff, the petitioner appeals from an order of the Supreme Court, Orange County (Bartlett, J.), dated November 13, 2013, which granted the respondents' motion pursuant to CPLR 7804(f) and, in effect, CPLR 3211(a)(7) to dismiss the petition for failure to state a cause of action.
ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted the respondents' motion pursuant to CPLR 7804(f) and, in effect, CPLR 3211(a)(7) to dismiss the petition in this proceeding. “On a motion pursuant to CPLR 3211(a)(7) and 7804(f), only the petition is considered, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference” (Matter of Brown v. Foster, 73 A.D.3d 917, 918, 900 N.Y.S.2d 432 ; see Matter of Schlemme v. Planning Bd. of City of Poughkeepsie, 118 A.D.3d 893, 895, 988 N.Y.S.2d 640 ; Matter of Lobaina v. Human Resources Admin., Office of Child Support Enforcement, 79 A.D.3d 884, 884, 912 N.Y.S.2d 429 ).
“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 in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law” (Matter of Lane v. City of New York, 92 A.D.3d 786, 786, 938 N.Y.S.2d 597 ; see Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763, 697 N.Y.S.2d 869, 720 N.E.2d 89 ; Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223 ). Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for the other improper or impermissible reasons set forth above (see Matter of Johnson v. Katz, 68 N.Y.2d at 650, 505 N.Y.S.2d 64, 496 N.E.2d 223 ; Matter of Lane v. City of New York, 92 A.D.3d at 786, 938 N.Y.S.2d 597 ).
Here, the allegations of the petition were insufficient to state a cause of action that the petitioner's employment was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law (see Matter of Lane v. City of New York, 92 A.D.3d at 786, 938 N.Y.S.2d 597 ; Matter of Johnson v. New York City Dept. of Educ., 73 A.D.3d 927, 900 N.Y.S.2d 737 ; Matter of Ward v. Metropolitan Transp. Auth., 64 A.D.3d 719, 883 N.Y.S.2d 282 ; Walsh v. New York State Thruway Auth., 24 A.D.3d 755, 808 N.Y.S.2d 710 ). Contrary to the petitioner's contention, the termination of her employment for the reasons she alleges did not violate her right of intimate association under the First Amendment to the United States Constitution (see generally Roberts v. United States Jaycees, 468 U.S. 609, 617–619, 104 S.Ct. 3244, 82 L.Ed.2d 462 ; see Beecham v. Henderson County, Tennessee, 422 F.3d 372, 375–376 [6th Cir.] ; Marcum v. McWhorter, 308 F.3d 635, 637–639 [6th Cir.] ; Bates v. Bigger, 192 F.Supp.2d 160 [S.D.N.Y.], affd. 56 Fed.Appx. 527, 529 [2d Cir.] ; cf. Baron v. Meloni, 602 F.Supp. 614 [W.D.N.Y.] ). Her claims that the Orange County Sheriff's Office tolerated other relationships such as the one in which she was involved and did not have a formal anti-fraternization policy were inadequate to state a cause of action that she was terminated in bad faith (see Walsh v. New York State Thruway Auth., 24 A.D.3d 755, 808 N.Y.S.2d 710 ). Moreover, the petitioner was not entitled to a statement of the reason for the termination of her probationary employment (see Matter of York v. McGuire, 63 N.Y.2d 760, 480 N.Y.S.2d 320, 469 N.E.2d 838 ). Thus, the Supreme Court properly granted the respondents' motion to dismiss the petition (see CPLR 3211[a][7] ; 7804[f] ).