IN RE: James HERRING (2021)

Judgment, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 29, 2019, granting the petition to annul a determination by respondents, dated May 7, 2018, which terminated petitioner from his position as police officer, and reinstating him to his position with back pay, unanimously reversed, on the law, without costs, the judgment vacated, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

Petitioner was not entitled under Military Law § 243(9) to receive credit towards his dismissal probationary period for the time he was absent on military duty, because the statute is clear on its face that it applies only to probationary periods related to “any position” “to which [an officer] may ․ be appointed or promoted” (Military Law § 243[9];  see Matter of DeFrancis v. D'Ambrose, 57 A.D.2d 804, 805, 394 N.Y.S.2d 695 [1st Dept. 1977], affd 44 N.Y.2d 889, 407 N.Y.S.2d 696, 379 N.E.2d 222 [1978]).  Contrary to petitioner's argument, the statute does not, by its plain terms, apply to dismissal probationary periods imposed as part of a negotiated agreement with his employer, respondent Police Department of the City of New York, to resolve disciplinary charges against him.  If the legislature had intended the statute to apply more broadly, it would have so provided (see Colon v. Martin, 35 N.Y.3d 75, 78, 125 N.Y.S.3d 346, 149 N.E.3d 39 [2020];  New York City Council v. City of New York, 4 A.D.3d 85, 96, 770 N.Y.S.2d 346 [1st Dept. 2004], lv denied 4 N.Y.3d 701, 790 N.Y.S.2d 647, 824 N.E.2d 48 [2004]).

This Court's decision in Matter of Aroca v. Bratton, 171 A.D.3d 655, 99 N.Y.S.3d 282 [1st Dept. (2019), does not warrant a contrary result.  Unlike here, that case concerned the application of Military Law § 239 to the initial probationary period of a recently appointed police officer, and addressed only whether her modified duty status at the time she was deployed rendered Military Law § 239 inapplicable to her initial probationary period.

Because petitioner remained on dismissal probation at the time he was terminated, a hearing was not required (see Matter of Dillon v. Safir, 270 A.D.2d 116, 117, 704 N.Y.S.2d 568 [1st Dept. 2000];  see also Matter of Nieves–Diaz v. City of New York, 37 A.D.3d 356, 356–57, 830 N.Y.S.2d 535 [1st Dept. 2007]).