                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     521626
________________________________

In the Matter of WILLIAM A.
   HANSON,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
DANIEL R. CRANDELL, as
   Commissioner of the Schoharie
   County Department of Public
   Works, et al.,
                    Respondents.
________________________________


Calendar Date:   June 3, 2016

Before:   Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

                             __________


     Mark Singletary, Jefferson, for appellant.

      Roemer Wallens Gold & Mineaux LLP, Albany (Earl T. Redding
of counsel), for respondents.

                             __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Connolly, J.),
entered June 4, 2015 in Schoharie County, which, among other
things, dismissed petitioner's application, in a proceeding
pursuant to CPLR article 78, to review a determination of
respondent Commissioner of the Schoharie County Department of
Public Works terminating petitioner's employment.

      Petitioner previously was employed by respondent County of
Schoharie in the noncompetitive class position of Lead Cleaner in
its Department of Public Works from February 22, 2011 until
December 24, 2012. Prior to the County defunding that position
                               -2-                521626

in December 2012, petitioner applied for and accepted a new
position with the County – Mechanical Equipment Operator I
(hereinafter MEO) – effective December 24, 2012. The MEO
position with the Department of Public Works also was a
noncompetitive class position and, as such, petitioner was
subject to a probationary period of not less than eight weeks nor
more than 52 weeks as per the County's civil service rules.

      In early 2013, petitioner received, reviewed and signed an
interim probationary report.1 The report indicated that
petitioner's job performance was satisfactory and recommended
that petitioner's probationary status be continued. Notably,
this interim report expressly stated that petitioner's
probationary period was set to expire on December 23, 2013. On
or about December 19, 2013, petitioner was provided with a final
probationary report,2 which indicated that his performance was
unsatisfactory and recommended that he be terminated from the MEO
position. The following day, petitioner was informed by
respondent Commissioner of the Schoharie County Department of
Public Works that his employment was terminated effective
December 21, 2013. The union representing petitioner then filed
two grievances upon his behalf – contending that petitioner was
improperly denied an exit interview and that his termination was
without just cause. The County's Board of Supervisors denied
both grievances, and a subsequent demand to arbitrate those
grievances was withdrawn.

      Thereafter, in April 2014, petitioner commenced this CPLR
article 78 proceeding to review the Commissioner's determination
– alleging that his discharge was in bad faith, constituted an
abuse of the Commissioner's discretion and was arbitrary and


     1
        The report itself is dated March 25, 2013, but it was not
signed by respondent Commissioner of the Schoharie County
Department of Public Works – and, presumably, petitioner – until
May 10, 2013.
     2
        The report is dated December 2, 2013 and appears to have
been signed by the Commissioner and petitioner on December 19,
2013.
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capricious. Respondents successfully moved to dismiss the
petition for failure to state a cause of action, but Supreme
Court granted petitioner's subsequent motion to reargue, denied
the motion to dismiss and directed respondents to file an answer.
Following joinder of issue, Supreme Court, among other things,
dismissed petitioner's application, finding – insofar as is
relevant here – that petitioner failed to demonstrate that the
Commissioner acted arbitrarily or in bad faith. This appeal by
petitioner ensued.

      We affirm. Petitioner's primary argument on appeal is that
Supreme Court erred in concluding that he was a probationary
employee at the time of his discharge. To the extent that this
argument is properly before us, petitioner's assertion in this
regard is belied by, among other things, his verified petition,
wherein he admitted that, upon accepting the MEO position, he was
placed on probation for a period of 52 weeks – with said
probationary period to expire on December 23, 2013.3
Petitioner's present claim – that he was a tenured employee at
the time of his discharge – is further refuted by the March 2013
interim probationary report that was reviewed and signed by
petitioner, which, as noted previously, expressly states that
petitioner's probationary period would expire on December 23,
2013. Finally, in support of their motion to dismiss,
respondents tendered the affidavit of the County's deputy
personnel officer, who averred that petitioner was on
probationary status at the time of his discharge. Accordingly,
Supreme Court properly concluded that petitioner was a
probationary employee at the time of his discharge.

      Petitioner's related claim – that his probationary period
was improperly extended after the initial eight-week period – is
equally unavailing. Schoharie County Civil Service Rule XIII (1)
(a) provides, in relevant part, that "every permanent appointment
to a position in the non-competitive . . . class shall be for a
probationary term of not less than eight nor more than [52]


    3
        The petition contains a typographical error and
mistakenly recites that petitioner's probationary period was to
expire on December 23, 2014.
                              -4-                521626

weeks." Rule XIII (1) (e) further provides that "[a]n
appointment shall become permanent upon the retention of the
probationer after his/her completion of the maximum period of
probation or upon earlier written notice following completion of
the minimum period of probation that his/her probationary term is
successfully completed." There is no dispute that the MEO
position constituted a noncompetitive class appointment and,
hence, petitioner clearly was subject to a probationary period
ranging from eight to 52 weeks in length. As petitioner was
discharged before the end of his probationary period, and as
nothing in the record suggests that petitioner was provided with
written notice that his probationary period had been successfully
completed prior to December 23, 2013, we find no merit to
petitioner's claims that his probationary period was improperly
calculated/extended or that he otherwise became a tenured
employee prior to his termination from the MEO position.4

      Turning to the discharge itself, "[a] probationary employee
may be dismissed for almost any reason, or for no reason at all,
and the employee has no right to challenge the termination in a
hearing or otherwise, absent a showing that he or she was
dismissed in bad faith or for an improper or impermissible
reason" (Wilson v City of New York, 100 AD3d 453, 453 [2012],
citing Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999];
see Matter of Shabazz v New York State Dept. of Correctional
Servs., 63 AD3d 1253, 1254 [2009]; Matter of Martinez v State
Univ. of N.Y., 294 AD2d 650, 651 [2002]). Consistent with the
provisions of Rule XIII (1), a probationary employee may be
terminated for unsatisfactory performance "at any time after the
completion of the minimum period of probation, and on or before
completion of the maximum period of probation in the manner as
prescribed" therein. To that end, Rule XIII (5) provides that


    4
        To the extent that petitioner argues that he was
transferred to the MEO position and, therefore, acquired certain
procedural rights with respect thereto, this argument lacks
merit. The affidavit provided by the County's deputy personnel
director makes clear that the transfer provisions embodied in the
County's civil service rules apply only to competitive class
appointments.
                              -5-                521626

"[a] probationer whose services are to be terminated for
unsatisfactory service shall be given written notice prior to
such termination and, upon request, shall be granted an interview
with the appointing authority or his/her representative."
Additionally, the probationary employee's supervisor is required
to "carefully observe" such employee's conduct and, "from time to
time during the probationary term," to advise the employee of his
or her status and progress (Schoharie County Civil Service Rule
XIII [5]). Finally, "at least two weeks prior to the end of the
probationary term," the employee's supervisor must report on such
employee's progress to the appointing authority (Schoharie County
Civil Service Rule XIII [5]).

      Here, petitioner was provided with an interim probationary
report in early 2013, at which time he was advised of both his
progress and continued probationary status. Prior to the
expiration of his probationary term on December 23, 2013,
petitioner was provided with written notice of his termination
for unsatisfactory job performance, and petitioner thereafter
requested – and was granted – an exit interview. Accordingly, we
are satisfied that the Commissioner complied with the County's
civil service rules governing the evaluation and termination of
probationary employees with respect to petitioner, and our
further review of the record otherwise fails to disclose any
evidence of bad faith or an improper or impermissible reason for
petitioner's discharge. Finally, inasmuch as petitioner had not
attained more than one year of continuous, full-time service in
the MEO position at the time of his discharge, he could not avail
himself of the discipline-for-just-cause provisions of the
collective bargaining agreement between the County and his
bargaining representative. Petitioner's remaining contentions,
to the extent not specifically addressed, have been examined and
found to be lacking in merit.

     Peters, P.J., Lahtinen, Rose and Clark, JJ., concur.
                        -6-                  521626

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
