For a Judgment, etc., v. SCHEMBRI (1997)

Supreme Court, Appellate Division, First Department, New York.

Harlie McKENZIE, Petitioner-Appellant, For a Judgment, etc., v. Anthony J. SCHEMBRI, etc., et al., Respondents-Respondents.

Decided: January 28, 1997

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER and TOM, JJ.

Mercedes M. Maldonado, New York City, for petitioner-appellant. Julian L. Kalkstein, New York City, for respondents-respondents.

Order and judgment (one paper), Supreme Court, New York County (Leland DeGrasse, J.), entered November 15, 1995, which granted respondents' motion for leave to renew a prior judgment annulling respondents' termination of petitioner as a probationary correction officer, and, upon renewal, denied the application pursuant to CPLR article 78 and dismissed the petition, unanimously affirmed, without costs.

Renewal was properly granted because the ground on which the determination was annulled, namely, that petitioner was terminated after his period of probation had expired, was first raised by petitioner only in his reply papers, rendering excusable respondents' omission of facts relevant to the reckoning of such period (see, De Almeida v. Finesod, 160 A.D.2d 491, 554 N.Y.S.2d 155). Upon renewal, the motion court correctly found that petitioner was terminated within his probationary term based upon the documentation of vacation days that extended the term. Petitioner's conclusory allegations of bad faith are insufficient to warrant a hearing (see, Matter of Thomas v. Abate, 213 A.D.2d 251, 623 N.Y.S.2d 870).

MEMORANDUM DECISION.

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