IN RE: Francesca INTERRANTE (2023)

Order and judgment (0ne paper), Supreme Court, New York County (Richard Latin, J.), entered December 2, 2022, denying the petition to vacate the termination of petitioner's employment with respondent New York City Department of Consumer and Worker Protection (DCWP) under Civil Service Law § 75 effective April 14, 2022, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondents' decision to discharge petitioner under Civil Service Law § 75 for “incompetence” due to excessive absenteeism following a work-related injury is not arbitrary and capricious or affected by an error of law (see Wysocki v. Town of Southold, 204 A.D.3d 811, 812–813, 164 N.Y.S.3d 505 [2d Dept. 2022], lv denied 38 N.Y.3d 914, 2022 WL 4241010 [2022];  Matter of Hunstein v. Town of Southold, 204 A.D.3d 797, 799, 167 N.Y.S.3d 114 [2d Dept. 2022], lv denied 38 N.Y.3d 913, 2022 WL 4240841 [2022];  Cicero v. Triborough Bridge & Tunnel Auth., 264 A.D.2d 334, 336, 694 N.Y.S.2d 51 [1st Dept. 1999], lv dismissed 94 N.Y.2d 931, 708 N.Y.S.2d 350, 729 N.E.2d 1149 [2000]).  Petitioner was continuously absent from work for over 295 days and provided no indication as to when or whether she could return to work.

Petitioner's contention that DCWP erred by using Civil Service Law § 75 instead of § 71 to discharge her is unavailing, as neither the statute itself nor the relevant case law mandates the use of Civil Service Law § 71 as the exclusive procedure to separate an employee who is absent due to injury (see Matter of Hunstein, 204 A.D.3d at 799, 167 N.Y.S.3d 114;  see e.g. Matter of Jordan v. New York City Hous. Auth., 33 N.Y.3d 408, 411–412, 104 N.Y.S.3d 42, 128 N.E.3d 169 [2019]).  In any event, petitioner fails to allege that her disability has not permanently incapacitated her from the performance of her civil service duties (see e.g. Matter of Allen v. Howe, 84 N.Y.2d 665, 669, 621 N.Y.S.2d 287, 645 N.E.2d 720 [1994]).