IN RE: Deborah SANTORO (2005)

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Suffolk County Police Department dated July 15, 2003, which terminated the petitioner from her employment, the petitioner appeals from (1) a decision of the Supreme Court, Suffolk County (Jones, J.), dated March 14, 2004, and (2) a judgment of the same court entered May 20, 2004, which, upon the decision, denied the petition and dismissed the proceeding.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further;

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

Approximately three months before the end of her 18-month probationary period, the petitioner's employment as a police officer with the Suffolk County Police Department was terminated for “unsatisfactory performance.”   She commenced this proceeding pursuant to CPLR article 78, inter alia, to review the determination terminating her employment.

 At any time during the probationary period, a probationary employee may be terminated without a pre-termination hearing and without a statement of reasons (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 762-763, 697 N.Y.S.2d 869, 720 N.E.2d 89;  Matter of York v. McGuire, 63 N.Y.2d 760, 480 N.Y.S.2d 320, 469 N.E.2d 838;  Matter of Rossetti-Boerner v. Hampton Bays Union Free School Dist., 1 A.D.3d 367, 368, 766 N.Y.S.2d 597;  Matter of Garypie v. Incorporated Vil. of Sag Harbor, 158 A.D.2d 598, 599, 551 N.Y.S.2d 570;  Matter of Caminiti v. New York City Tr. Auth. Police, Dept., 125 A.D.2d 306, 306-307, 508 N.Y.S.2d 590).  “Judicial review of the determination to discharge [a] probationary employee is limited to an inquiry as to whether the termination was made in bad faith” (Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223), or “in violation of statutory or decisional law, or for unconstitutional or illegal reasons” (Cooke v. County of Suffolk, 11 A.D.3d 610, 611, 783 N.Y.S.2d 392). The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the unconstitutional or illegal reasons (see Hernandez v. City of White Plains, 301 A.D.2d 523, 753 N.Y.S.2d 731).

Applying these principles, the Supreme Court properly denied the petition and dismissed the proceeding.   The petitioner's conclusory allegations were insufficient to raise a triable issue of fact as to the respondents' alleged bad faith or improper motive, while the evidence tendered by the respondents supported the conclusion that the petitioner's job performance was unsatisfactory (see Cooke v. County of Suffolk, supra ).

The petitioner's remaining contention is without merit.