IN RE: Wilfredo A. VARGAS (2023)

Judgment (denominated an order), Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about September 30, 2022, denying the petition to annul respondents The Department of Education of the City of New York and The Board of Education of the City School District of the City of New York's (collectively DOE) determination, dated February 11, 2022, which terminated petitioner's probationary employment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.  Order, same court and Justice, entered on or about December 20, 2022, which denied petitioner's motion to renew his petition, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered on or about October 3, 2022, unanimously dismissed, without costs, as taken from a duplicative order of the September 30, 2022 order.

The court properly denied the petition, as DOE's decision to terminate petitioner's probationary employment was not arbitrary and capricious, an abuse of discretion or contrary to law (see Matter of Pell v. Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231–232, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974];  Matter of Dempsey v. New York City Dept. of Educ., 108 A.D.3d 454, 454–455, 969 N.Y.S.2d 452 [1st Dept. 2013], affd 25 N.Y.3d 291, 11 N.Y.S.3d 529, 33 N.E.3d 485 [2015]).  DOE was entitled to discontinue petitioner's service as a probationary teacher “at any time and for any reason” unless the decision was “for a constitutionally impermissible purpose, violative of a statute, or done in bad faith” (Matter of DeVito v. Department of Educ. of the City of N.Y., 112 A.D.3d 421, 421, 975 N.Y.S.2d 672 [1st Dept. 2013] [internal quotation marks omitted]).  The documentary evidence of petitioner's unsatisfactory performance while a probationary teacher sufficiently rebutted any allegations of bad faith (see Matter of Fichter v. Egan, 223 A.D.2d 516, 637 N.Y.S.2d 925 [1st Dept. 1996]).  Although petitioner received two effective ratings, these ratings underscore that the administrators at his school treated him fairly (see Matter of York v. McGuire, 99 A.D.2d 1023, 1024, 473 N.Y.S.2d 815 [1st Dept. 1984], affd 63 N.Y.2d 760, 480 N.Y.S.2d 320, 469 N.E.2d 838 [1984];  Matter of Lamberti v. City of New York, 173 A.D.3d 603, 604, 100 N.Y.S.3d 871 [1st Dept. 2019]).

The motion to renew was properly denied as petitioner's affidavit failed to present any new evidence that could not have been presented in his petition or that would have rendered a different result (see Matter of Banow v. Simins, 53 A.D.2d 542, 542, 384 N.Y.S.2d 465 [1st Dept. 1976], appeal dismissed 40 N.Y.2d 989 [1976], cert denied 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 360 [1977]).

We have considered petitioner's remaining arguments and find them unavailing.