WALSH v. NEW YORK STATE THRUWAY AUTHORITY

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

David WALSH, appellant, v. NEW YORK STATE THRUWAY AUTHORITY, respondent.

Decided: December 27, 2005

ROBERT W. SCHMIDT, J.P., SONDRA MILLER, FRED T. SANTUCCI, and PETER B. SKELOS, JJ. James M. Rose, White Plains, N.Y., for appellant. Eliot Spitzer, Attorney-General, New York, N.Y. (Robert H. Easton and Richard P. Dearing of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract and to reinstate the plaintiff to his former position as an employee of the defendant, New York State Thruway Authority, with back pay, the plaintiff appeals from an order of the Supreme Court, Rockland County (Bergerman, J.), dated October 1, 2004, which granted the defendant's motion to dismiss the action pursuant to CPLR 3211(a)(2) for lack of subject matter jurisdiction and denied his cross motion to convert the action to a proceeding pursuant to CPLR article 78.

ORDERED that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, the motion is denied, the cross motion is granted, the action is converted into a CPLR article 78 proceeding, the complaint is converted into a petition, and the proceeding is dismissed.

The plaintiff, David Walsh, was employed by the defendant, New York State Thruway Authority (hereinafter the Authority) in December 2003 when he was charged with numerous disciplinary violations.   In settlement of those charges, he entered into a stipulation wherein he agreed to a one-year period of probation, during which the Authority would have the discretion to discharge him for any similar misconduct, in the manner provided for probationary terminations under the Civil Service Law. In February 2004 the plaintiff was charged with similar violations and was discharged without a hearing pursuant to the stipulation.   The plaintiff then commenced this action against the Authority in the Supreme Court, inter alia, to recover damages for breach of contract and to reinstate him to his former position as an employee of the Authority with back pay.   The Supreme Court granted the Authority's motion to dismiss pursuant to CPLR 3211(a)(2) for lack of subject matter jurisdiction and denied the plaintiff's cross motion to convert the action to a proceeding pursuant to CPLR article 78.

 The Supreme Court erred in declining to convert the plaintiff's action to a CPLR article 78 proceeding.  “[T]he courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal, making whatever order is necessary for its prosecution” (Matter of First Natl. City Bank v. City of New York Finance Admin., 36 N.Y.2d 87, 94, 365 N.Y.S.2d 493, 324 N.E.2d 861;  see Town of Fishkill v. Royal Dutchess Props., 231 A.D.2d 511, 648 N.Y.S.2d 107;  CPLR 103[c] ).  Here, the plaintiff alleged in his complaint that he was terminated without a hearing in violation of his rights under the Civil Service Law and sought reinstatement to his former position with back pay.   Moreover, it is undisputed that the Authority had the statutory authority to issue a final and binding determination with respect to his employment (see Carson v. New York City Dept. of Sanitation, 271 A.D.2d 380, 707 N.Y.S.2d 93).   Thus, this case is clearly within the purview of a CPLR article 78 proceeding, the proper procedural vehicle for reviewing such a termination and, as the necessary parties are before the court, we convert the action to an CPLR article 78 proceeding pursuant to CPLR 103[c] (see Di Lorenzo v. Carey, 62 A.D.2d 583, 590, 405 N.Y.S.2d 356, cert. denied 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463;  cf. Gomez v. Bobker, 104 A.D.2d 790, 480 N.Y.S.2d 43).   However, upon our review of the record, we conclude that a dismissal on the merits was nevertheless warranted.

 A probationary employee may be discharged without a hearing and without a statement of reason in the absence of any demonstration that the dismissal was for a constitutionally-impermissible purpose or in violation of statutory or decisional law (see Matter of York v. McGuire, 63 N.Y.2d 760, 761, 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).   Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 763, 697 N.Y.S.2d 869, 720 N.E.2d 89;  Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223).  “The [employee] bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation” (Matter of Rossetti-Boerner v. Hampton Bays Union Free School Dist., supra at 368, 766 N.Y.S.2d 597).

 Here, the appellant failed to show he was terminated in bad faith or for any illegal reason as the record supports the conclusion that he violated the terms of the disciplinary stipulation during the period of his probation.   His claims that the Authority failed to credit his explanations or applied too broad a view of what constituted similar misconduct were inadequate to establish that he was terminated in bad faith (see Matter of Soto v. Koehler, 171 A.D.2d 567, 567 N.Y.S.2d 652;  Matter of Leon v. Meehan, 67 N.Y.2d 613, 615, 499 N.Y.S.2d 679, 490 N.E.2d 546).

The parties' remaining contentions have either been rendered academic or are without merit.

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