IN RE: Application of Clint BYNOE (2001)

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

IN RE: Application of Clint BYNOE, Petitioner-Appellant, For a Judgment, etc., v. CITY OF NEW YORK, et al., Respondents-Respondents.

Decided: March 27, 2001

NARDELLI, J.P., ANDRIAS, WALLACH, LERNER and RUBIN, JJ.

Jeffrey L. Kreisberg, for Petitioner-Appellant. Julie Steiner, for Respondents-Respondents.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered February 2, 2000, which denied petitioner's application to annul respondent's determination terminating petitioner's provisional employment, unanimously affirmed, without costs.

Petitioner's evidence that over the course of his year-and-a half provisional employment he received only one performance evaluation six months after his appointment, which was favorable, does not satisfy his burden of showing that his termination was in bad faith or arbitrary and capricious (see, Matter of Romero v. Joseph, 169 A.D.2d 544, 564 N.Y.S.2d 397). There is evidence of petitioner's substandard performance as well (see, Matter of Atkinson v. Koch, 161 A.D.2d 152, 153-154, 554 N.Y.S.2d 554), and no evidence that respondent was required to give him periodic performance evaluations.

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