Opinion
December 31, 1990
Appeal from the Supreme Court, Suffolk County (Leis, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
The appellants contend that it was error for the trial court to allow the case to go to the jury because the petitioner had failed to carry his burden of establishing he was discharged in bad faith. We disagree.
The termination of employment of a probationary employee without a statement or a hearing must be upheld unless there is a demonstration that the dismissal was violative of the Constitution, illegal, or made in bad faith (see, Matter of York v. McGuire, 63 N.Y.2d 760, 761; Matter of Dozier v. New York City, 130 A.D.2d 128). The burden of proof is on the employee (see, Matter of Bergamini v. Manhattan Bronx Surface Tr. Operating Auth., 62 N.Y.2d 897).
The petitioner presented evidence that, on at least one occasion, the appellants had withheld his pay for failure to return approximately $11,000 of termination pay he received when he resigned as Commissioner of the Department of Building and Grounds (he had been contesting the authority of the town to order him to return the money). The petitioner alleged that his failure to return this money was the real reason for his dismissal. Furthermore, the petitioner had received a favorable eight-week evaluation from the chief building inspector, whose job it was to evaluate building inspectors. A subsequent evaluation by the acting commissioner of the Department of Planning and Development of the Town of Babylon was unfavorable. However, it was not customary for a commissioner of the Department of Planning and Development to make an evaluation and here the unfavorable evaluation was made on the same day as the petitioner's notice of dismissal. Further, by the acting commissioner's own admission, he lacked any personal knowledge or basis in fact for his evaluation. Thus, we find that the petitioner made out a case of bad faith sufficient to be submitted to the jury.
We have examined the appellants' remaining contentions and we find them to be without merit. Bracken, J.P., Kooper, Miller and Ritter, JJ., concur.