TAYLOR v. STATE UNIVERSITY OF NEW YORK (2004)

 Petitioner appeals from a judgment dismissing her CPLR article 78 petition seeking to annul the determination of respondents to terminate her probationary employment at respondent State University of New York, Upstate Medical University.   It is well established that a probationary civil service employee “ ‘may be dismissed for almost any reason, or for no reason at all’ ” (Matter of Swinton v. Safir, 93 N.Y.2d 758, 762-763, 697 N.Y.S.2d 869, 720 N.E.2d 89, quoting Matter of Venes v. Community School Bd. of Dist. 26, 43 N.Y.2d 520, 525, 402 N.Y.S.2d 807, 373 N.E.2d 987).   Moreover, a probationary employee has “no right to challenge the termination by way of a hearing or otherwise, absent a showing that [s]he was dismissed in bad faith or for an improper or impermissible reason (see, Matter of York v. McGuire, 63 N.Y.2d 760, 761 [480 N.Y.S.2d 320, 469 N.E.2d 838];  Matter of Anonymous v. Codd, 40 N.Y.2d 860 [387 N.Y.S.2d 1004, 356 N.E.2d 475] )” (Swinton, 93 N.Y.2d at 763, 697 N.Y.S.2d 869, 720 N.E.2d 89;  see also Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223).  “The burden of raising and proving such ‘bad faith’ is on the employee and the mere assertion of ‘bad faith’ without the presentation of evidence demonstrating it does not satisfy the employee's burden” (Matter of Soto v. Koehler, 171 A.D.2d 567, 568, 567 N.Y.S.2d 652, lv. denied 78 N.Y.2d 855, 573 N.Y.S.2d 644, 578 N.E.2d 442;  see Matter of Rossetti-Boerner v. Hampton Bays Union Free School Dist., 1 A.D.3d 367, 368, 766 N.Y.S.2d 597).

We conclude that petitioner did not sustain her burden of showing in the first instance that her termination was in bad faith (see Matter of Cleary v. New York State Dept. of Educ., 239 A.D.2d 649, 650, 656 N.Y.S.2d 573, citing Johnson, 68 N.Y.2d at 650, 505 N.Y.S.2d 64, 496 N.E.2d 223).   We conclude, moreover, that the termination was not carried out in an illegal manner.   Instead, the record establishes that petitioner's probationary employment was overseen by respondents in full conformity with the applicable regulation (see 4 NYCRR 4.5[b][5][iii];  Matter of Berry v. Perales, 195 A.D.2d 926, 930, 600 N.Y.S.2d 838, appeal dismissed 82 N.Y.2d 802, 604 N.Y.S.2d 558, 624 N.E.2d 696;  see also Tuller v. Central School Dist. No. 1 of Towns of Conklin, Binghamton, Kirkwood & Vestal, 40 N.Y.2d 487, 494-495, 387 N.Y.S.2d 87, 354 N.E.2d 826, rearg. denied 40 N.Y.2d 918, 389 N.Y.S.2d 1027, 357 N.E.2d 1033;  Matter of Scott v. Workers' Compensation Bd. of State of N.Y., 275 A.D.2d 877, 878, 713 N.Y.S.2d 571;  Matter of Tyner v. Harvey, 191 A.D.2d 924, 925-926, 594 N.Y.S.2d 916;  see generally Matter of Ward v. Roswell Park Mem. Inst., 161 A.D.2d 1148, 555 N.Y.S.2d 508).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: