IN RE: DEMAR MATHIS

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

IN RE: DEMAR MATHIS, PETITIONER-RESPONDENT, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT-APPELLANT. (APPEAL NO. 2.)

CA 10-01459

Decided: February 18, 2011

PRESENT:  SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ. ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-APPELLANT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum:  Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination terminating his employment as a correction officer for failure to complete his probationary period in a satisfactory manner.   Supreme Court granted the petition, annulled the determination, reinstated petitioner in his former position and awarded him back pay.   The court thereafter granted the motion of respondent to reargue its opposition to the petition and, upon reargument, the court erred in adhering to its prior decision.   We reverse.

We agree with respondent that, at the time of his termination, petitioner was a probationary employee who could be terminated “ ‘for almost any reason[ ] or for no reason at all’ “ (Matter of Swinton v. Safir, 93 N.Y.2d 758, 762-763;  see Matter of Taylor v. State Univ. of N.Y., 13 AD3d 1149).   Petitioner's probationary term was to expire on October 29, 2007, but it was extended by 92 days pursuant to 4 NYCRR 4.5(g).  The court, in concluding that petitioner was no longer a probationary employee on the date he was terminated, calculated the extension using calendar days rather than workdays.   Petitioner, however, did not challenge respondent's calculation of the probation extension in his petition.   Even assuming, arguendo, that the court could base its determination on a ground not raised in the petition (see Matter of Roth v. Syracuse Hous. Auth., 270 A.D.2d 909, lv denied 95 N.Y.2d 756), we conclude that the court erred in calculating the expiration date of the extended probationary term.   Where, as here, a probationary term is extended pursuant to 4 NYCRR 4.5(g), the extension is “one workday for every workday” the employee has missed (Matter of Beck v. Walker, 286 A.D.2d 996, 996;  see Matter of Fischer v. Hongisto, 75 A.D.2d 973, 974, appeal dismissed 53 N.Y.2d 703).

“As a probationary employee, petitioner had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason” (Swinton, 93 N.Y.2d at 763;  Matter of Carroll v. New York State Canal Corp., 51 AD3d 1389;  Taylor, 13 AD3d at 1149).   Petitioner made no such showing here.   Indeed, he had excessive absenteeism, disobeyed a direct order to return to work and continued to have absenteeism problems after being counseled with respect thereto.   As respondent correctly contends, “[c]hronic absenteeism is a sufficient basis for terminating a probationary employee” (Matter of Skidmore v. Abate, 213 A.D.2d 259, 260;  see Matter of Williams v Commissioner of Off. of Mental Health of State of N.Y., 259 A.D.2d 623), as is the refusal to comply with a direct order (see Carroll, 51 AD3d 1389).

Patricia L. Morgan

Clerk of the Court