IN RE: Joanne OUTLEY (2009)

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

IN RE: Joanne OUTLEY, Petitioner-Respondent, v. UPSTATE MEDICAL UNIVERSITY, Respondent-Appellant.

Decided: March 20, 2009

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PINE, JJ.

Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of Counsel), for Respondent-Appellant. George S. Mehallow, North Syracuse, for Petitioner-Respondent.

Respondent contends that Supreme Court erred in granting the CPLR article 78 second amended petition seeking to annul its determination to terminate petitioner from her employment. We agree. Following petitioner's excessive absences and disciplinary notifications, petitioner entered into a settlement agreement pursuant to which she was placed on probation for a specified period of time and was allowed no unauthorized absences. The record establishes that petitioner violated the settlement agreement with an unauthorized absence, thus providing respondent with a legally sufficient basis for terminating her employment that was neither arbitrary nor capricious (see Matter of Davis v. New York State Div. of Military & Nav. Affairs, 291 A.D.2d 778, 738 N.Y.S.2d 719). Petitioner failed to establish that she “ ‘was dismissed in bad faith or for an improper or impermissible reason’ ” (Matter of Taylor v. State Univ. of N.Y., 13 A.D.3d 1149, 1149, 787 N.Y.S.2d 753).

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the second amended petition is dismissed.

MEMORANDUM:

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