IN RE: Application of Thomas FITZGERALD (1997)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered September 17, 1996, which, in a proceeding pursuant to CPLR article 78 to annul respondent's determination discontinuing petitioner's probationary position in a supervisory title and demoting him to his permanent, nonsupervisory title, granted respondent's motion to dismiss the petition for failure to state a cause of action, unanimously affirmed, without costs.

The petition fails to allege facts sufficient to support a finding of bad faith (see, Matter of York v. McGuire, 63 N.Y.2d 760, 480 N.Y.S.2d 320, 469 N.E.2d 838).   That petitioner's immediate supervisor may have been performing out-of-title work in supervising and evaluating petitioner's probationary employment does not demonstrate bad faith, inasmuch as the negative evaluations of petitioner were reviewed and signed by a more senior supervisor, and petitioner admits many of the charges made against him, including repeated instances of insubordination attributable to his belief that his supervisor did not have authority over him.   Petitioner's remaining claims of a right to a hearing by reason of his war veteran status, unfair labor practices, and improper assignment to an employment position against his will are improperly raised for the first time on appeal.

MEMORANDUM DECISION.