IN RE: Correction Officer Flore WITHERSPOON

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

IN RE: Correction Officer Flore WITHERSPOON, etc., Petitioner-Appellant, v. Martin F. HORN, Commissioner of Correction of the City of New York, et al., Respondents-Respondents.

Decided: June 23, 2005

BUCKLEY, P.J., ANDRIAS, NARDELLI, GONZALEZ, SWEENY, JJ. Carroll & Friess, New York (Rosemary Carroll of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for respondents.

Orders, Supreme Court, New York County (Faviola A. Soto, J.), entered January 21, 2004 and May 20, 2004, which, respectively, denied petitioner's petition, brought pursuant to Article 78, and dismissed the proceeding, denied petitioner's motion to renew, unanimously affirmed, without costs.

 It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of the law (Matter of Smith v. New York City Dept. of Correction, 292 A.D.2d 198, 198-199, 739 N.Y.S.2d 666 [2002];  Matter of Brown v. City of New York, 280 A.D.2d 368, 370, 721 N.Y.S.2d 497 [2001] ).   Moreover, “[t]he 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 [1991], lv. denied 78 N.Y.2d 855, 573 N.Y.S.2d 644, 578 N.E.2d 442 [1991];  Matter of Taylor v. State Univ. of New York, 13 A.D.3d 1149, 787 N.Y.S.2d 753 [2004] ).

 In this matter, petitioner did not shoulder her burden of producing competent proof that she was terminated for an impermissible reason, especially in light of her log entries which indicated she had toured her assigned area during the attack, and that “all appear[ed] to be secure.”   In addition, we find that petitioner is not entitled to a name-clearing hearing as the apparent grounds for her termination, while serious, are not so stigmatizing as to support her application (see Matter of Hildebrand v. Kerik, 305 A.D.2d 181, 182, 757 N.Y.S.2d 853 [2003];  Matter of Welsh v. Kerik, 304 A.D.2d 417, 757 N.Y.S.2d 430 [2003], lv. denied 100 N.Y.2d 510, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003] ).   The motion to renew was properly denied for even if the documents submitted by petitioner constituted newly discovered evidence, petitioner still failed to demonstrate that her dismissal was improper.