Opinion
2015-02-4
In the Matter of Thomas J. TRIOLA, appellant, v. Richard F. DAINES, etc., et al., respondents.
Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Patrick J. Walsh of counsel), for respondents.
Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Patrick J. Walsh of counsel), for respondents.
PETER B. SKELOS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the New York State Department of Health dated July 30, 2010, which terminated the petitioner's probationary employment as a senior medical conduct investigator, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Jones, Jr., J.), entered October 26, 2012, which, upon a decision of the same court dated April 9, 2012, denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
“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 York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838; Matter of Capece v. Schultz, 117 A.D.3d 1045, 1046, 986 N.Y.S.2d 533). Here, the petitioner failed to carry his burden of presenting competent proof that his termination was improper ( see Matter of Lane v. City of New York, 92 A.D.3d at 786–787, 938 N.Y.S.2d 597; Matter of Deitch v. City of New York, 90 A.D.3d 924, 925, 935 N.Y.S.2d 79; Matter of Robinson v. Health & Hosps. Corp., 29 A.D.3d 807, 809, 815 N.Y.S.2d 222). The record demonstrates that the petitioner's performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith ( see Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223; Matter of Goonewardena v. State of N.Y. Workers' Compensation Bd., 95 A.D.3d 638, 638, 943 N.Y.S.2d 884; Matter of Fichter v. Egan, 223 A.D.2d 516, 637 N.Y.S.2d 925). Accordingly, the Supreme Court properly denied the petition and dismissed this CPLR article 78 proceeding.