        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

187
CA 10-01459
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.


IN THE MATTER OF DEMAR MATHIS,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF CORRECTIONAL
SERVICES, RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL),
FOR RESPONDENT-APPELLANT.


     Appeal from a judgment (denominated decision and order) of the
Supreme Court, Erie County (John L. Michalski, A.J.), entered December
18, 2009 in a proceeding pursuant to CPLR article 78. The judgment
granted respondent’s motion for leave to reargue, and upon reargument
adhered to the court’s determination granting the petition.

     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 NY2d 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
                                 -2-                           187
                                                         CA 10-01459

(see Matter of Roth v Syracuse Hous. Auth., 270 AD2d 909, lv denied 95
NY2d 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 AD2d 996, 996; see Matter of Fischer v
Hongisto, 75 AD2d 973, 974, appeal dismissed 53 NY2d 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 NY2d 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
AD2d 259, 260; see Matter of Williams v Commissioner of Off. of Mental
Health of State of N.Y., 259 AD2d 623), as is the refusal to comply
with a direct order (see Carroll, 51 AD3d 1389).




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
