IN RE: Harry NESPOLI

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

IN RE: Harry NESPOLI, etc., et al., Petitioners-Appellants, v. John J. DOHERTY, etc., et al., Respondents-Respondents.

Decided: November 19, 2009

ANDRIAS, J.P., SWEENY, NARDELLI, CATTERSON, DeGRASSE, JJ. Stroock & Stroock & Lavan LLP, New York (Ernst H. Rosenberger of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Marcy J. Kahn, J.), entered July 17, 2008, which denied the application of petitioner sanitationmen's union to annul the determination of respondent Commissioner of the Department of Citywide Administrative Services (DCAS) to increase the probationary period for newly appointed sanitation workers from 12 months to 18 months, and dismissed the proceeding, unanimously affirmed, without costs.

The affidavit of respondent Commissioner of the Department of Sanitation of the City of New York (the Commissioner;  DSNY) in opposition to the petition avers, inter alia, that the number of accidents, disciplinary complaints and arrests involving new sanitation workers is too high.   Furthermore, based on his long experience with DSNY, a longer probationary period would enable DSNY to weed out higher risk employees and increase training and experience.   This would reduce these numbers and promote safety and discipline.   No basis exists for concluding that the Commissioner's belief that the numbers are unacceptably high, or his belief that extending the probationary period will reduce the numbers, is irrational, or that such beliefs are a pretext for some arbitrary or bad-faith motive (CPLR 7803[3];  see Matter of Hughes v. Doherty, 5 N.Y.3d 100, 105, 800 N.Y.S.2d 85, 833 N.E.2d 228 [2005];  Matter of Caruso v. Ward, 155 A.D.2d 242, 243, 546 N.Y.S.2d 853 [1989] ).   While it appears that administrative action was taken following discussion between DSNY and DCAS without any study or written recommendation, as in Caruso (id.), the City's personnel rules give DCAS's commissioner discretion to provide for a probationary period other than one year without engaging in any particular process of review (55 RCNY, Appendix A, § 5.2.1).   The Commissioner's reference to the two-year probationary period for police and corrections officers is not irrelevant but provides a benchmark for comparison, tending to show that 18 months is not excessive.