The opinion
Hart v Shea
2024 NY Slip Op 30764(U)
March 11, 2024
Supreme Court, New York County
Docket Number: Index No. 152870/2022
Judge: Arlene P. Bluth
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
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publication.
INDEX NO. 152870/2022
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARLENE P. BLUTH PART 14
Justice
---------------------------------------------------------------------------------X INDEX NO. 152870/2022
MALCOLM HART,
MOTION DATE 03/04/20241
Petitioner,
MOTION SEQ. NO. 001
-v-
DERMOT F. SHEA, THE NEW YORK CITY POLICE
DECISION + ORDER ON
DEPARTMENT, THE CITY OF NEW YORK
MOTION
Respondents.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 11, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44,
45
were read on this motion to/for ARTICLE 78 .
The petition to reinstate petitioner as a police officer for the NYPD is denied.
Background
Petitioner began working for the NYPD in 2009. He admits he was first placed on
“dismissal probation” in 2017 but argues that it expired on July 13, 2018. Petitioner then alleges
that he was placed on this type of probation again in June 2019 and that it expired on June 13,
2020.
He explains that on October 13, 2021, he was on patrol in Brooklyn when he pursued a
vehicle that was reported stolen; he contends that one of the individuals was taken into custody
without incident. However, petitioner argues that the driver refused to cooperate and petitioner
was compelled to use physical force to apprehend the driver. Petitioner alleges that he was
1
Although this proceeding was only assigned to the undersigned on March 4, 2024, the Court recognizes that this
proceeding was pending before different judges over the last few years. The Court apologizes on behalf of the court
system for the lengthy delay in the resolution of this proceeding.
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served with charges regarding this incident on October 20, 2021 and that he was subsequently
fired by the NYPD commissioner. Petitioner contends that at the time of his termination, he was
no longer subject to dismissal probation and therefore he was entitled to a hearing concerning his
charges.
Respondents offer a different view of the aforementioned events. They observe that
petitioner previously received disciplinary charges in two separate cases. The first case involved
multiple incidents and charges, including reporting late four times and driving a motor vehicle in
a reckless manner on three separate occasions. Respondents contend that petitioner drove above
the speed limit, ran several red lights and stop signs, and ignored another officer’s order to stop
and pull over. The second case involved a single incident wherein he was charged with
attempting to fight an on-duty supervisor. He received a hearing for both cases and received
penalties, both of which included dismissal probation.
With respect to the incident that led to petitioner’s termination, respondents contend that
petitioner used excessive force while apprehending the driver of the purportedly stolen vehicle.
Specifically, the charges alleged that he struck the driver eight times in the head with his firearm
after first telling a supervisor that he only used his fist. The driver needed four staples in his
head for his injuries. Respondents argue that their Chief of Risk Management recommended that
petitioner be fired based on his extensive disciplinary record and this incident.
Respondents argue that petitioner was still on dismissal probation because the one-year
period only begins to run once an officer is returned to full duty assignment. They insist that
modified assignments, suspensions, vacations, restricted duty, or sick days do not count towards
satisfying the probationary period. Respondents maintain that the first period started on July 13,
2017 but did not run out until February 24, 2021. They explain that petitioner was on modified
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assignment and restricted duty for 953 days and took six vacation days during this time period.
Respondents argue that petitioner was still serving his second year of dismissal probation period
when he was dismissed in December 2021 and therefore a hearing was not necessary.
In reply, petitioner contends that he does not dispute that termination is authorized during
the probationary period. He argues that while he was on restricted or modified duty, he was still
performing law enforcement duties and so his probationary period should have run during this
period. Petitioner maintains that respondents do not have the authority to arbitrarily stop this
period.
Discussion
In an article 78 proceeding, “the issue is whether the action taken had a rational basis and
was not arbitrary and capricious” (Ward v City of Long Beach, 20 NY3d 1042, 1043, 962 NYS2d
587 [2013] [internal quotations and citation omitted]). “An action is arbitrary and capricious
when it is taken without sound basis in reason or regard to the facts” (id.). “If the determination
has a rational basis, it will be sustained, even if a different result would not be unreasonable”
(id.). “Arbitrary action is without sound basis in reason and is generally taken without regard to
the facts” (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale
& Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 [1974]).
While on dismissal probation, a police officer “could be terminated for virtually any
reason or for no reason at all, with no right to challenge such 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” (Cipolla v Kelly, 26 AD3d 171, 812 NYS2d 462 [1st Dept 2006]).
In the NYPD’s disciplinary system, dismissal probation is defined as:
“Dismissal Probation – When a member of the service is placed on Dismissal
Probation as part of a disciplinary penalty, the member is dismissed from the Police
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Department, and he or she acknowledges the dismissal in writing. The Department
delays the imposition of the dismissal for a 1-year period, during which the member
must complete 1 year of full-duty status in order to complete the probationary
period. If there is further misconduct during the probationary period, the
Department may summarily dismiss the member of the service without a formal
hearing, including for offenses that would not ordinarily result in termination for a
member not on Dismissal Probation” (NYSCEF Doc. No. 34 at 13).
Based on this provision, petitioner had to complete one year of full duty status (id.).
In this proceeding, the Court must first consider whether or not petitioner was still on
dismissal probation when he was terminated. As best this Court can tell, petitioner does not
dispute that he was assigned to modified or restricted duty following his previous disciplinary
hearings or contest respondents’ calculation of his work assignment. Respondents included a
dismissal probation worksheet in their papers (NYSCEF Doc. No. 36). Petitioner’s reply does
not, for instance, offer his own calculation of the relevant time periods or offer specific rebuttals
about this worksheet. Put another way, petitioner did not contend that respondents miscalculated
the time he was on full duty status.
Instead, petitioner appears to argue that respondents have no right to define what service
“counts” with respect to completing a probationary period. However, petitioner cites no binding
or applicable caselaw for the proposition that the NYPD is barred from establishing its own
disciplinary procedures. Petitioner’s citation in reply to provisions of the Administrative Code
concerning police discipline does not evidence a basis upon which this Court can grant the
petition. To the extent that petitioner is alleging some sort of facial or as-applied challenge to the
NYPD Disciplinary Guide, that argument is denied as it cannot be raised for the first time in
reply.
Petitioner failed to meet his burden to show that respondents’ calculation of his dismissal
probation was improper. Nor did he establish that his firing was in bad faith. The letter from
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Motion No. 001
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Chief of Risk Management (NYSCEF Doc. No. 43), establishes a good faith basis for firing
petitioner—namely that petitioner “displayed a pattern unbecoming of a police officer.”
Accordingly, it is hereby
ADJUDGED that the petition is denied and this proceeding is dismissed without costs or
disbursements.
3/11/2024 $SIG$
DATE ARLENE P. BLUTH, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Motion No. 001
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