# Vijungco v. Metropolitan Transp. Auth. > New York Supreme Court, New York County · March 6, 2024 · 2024 NY Slip Op 31023(U) URL: https://www.frixlaw.com/law-library/cases/9956352 ## Case - **Court:** New York Supreme Court, New York County - **Decided:** March 6, 2024 - **Citations:** 2024 NY Slip Op 31023(U) - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9956352 ## Opinion text Vijungco v Metropolitan Transp. Auth. 2024 NY Slip Op 31023(U) March 6, 2024 Supreme Court, New York County Docket Number: Index No. 158756/2023 Judge: Denise M. Dominguez 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 York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 158756/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/27/2024 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35M .Ju.1-tice -·················--·-···----- ---------- ------- ----------------------------------X 11",DEX r,;o, 158756/2023 JUSTIN VTJUNGCO MOTIO~ SEQ. NO. _ ___:_00::.:l'-------- Petitioner - V - DECISION AND ORDER ON METROPOLITAN TRANSPORTATION AUTHORITY, MOTION Respondent ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 15, 16, 18, 19, 20, 21, 22, 23,24,25,26,27,28, 29, 30,31,32, 33 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) For the reasons that follow, this Petition pursuant to CPLR Art. 78, seeking to annul and rescind Petitioner JUSTIN VIJUNGCO's voluntary resignation as a probationary police officer with Respondent METROPOLITAN TRANSPORTATION AUTI IORITY (MTA) is denied. Background Petitioner was hired by Respondent's Police Department (MTAPD) in July 2022. He graduated the Police Academy in January 2023, at \vhich time Petitioner became a MTAPD Probationary Police Oflicer. The probationary period would be for one year. During Petitioner's first three months of his probationary period, he was unsuccessful in Phase 2 of field training, Phase 3 of field training, and in a third subsequent Remedial Phase. Phase 2 of Field Training Based on Petitioner's evaluation of Phase 2, Petitioner's performance was found to be "unusual" compared to over 800 other officers previously instructed by the evaluating officer. Specifically, the otliecr found that Petitioner had "difficulty understanding the appropriate use of force 158756/2023 VIJUNGCO, JUSTIN vs. METROPOLITAN TRANSPORTATION AUTHORITY Page 1 of 5 Motion No. 001 [* 1] 1 of 5 NYSCEF DOC. NO. 34 INDEX NO. 158756/2023 RECEIVED NYSCEF: 03/27/2024 l in several scenarios and was apparently terrified to speak to the simulator in several stressful scenarios and did discharge his weapon at inappropriate times." Based on the written evaluation, dated March 3, 2023, and signed by Petitioner, his perfonnancc was found to be "unacceptable" and "generally did not meet performance expectations" and it \Vas recommended that "the recruit be failed for this segment of training." The evaluation further noted that while Petitioner showed signs of progress in some aspects, and had the drive to learn, he "appeared to have difficulty retaining information given to him ... needed to be reminded and/or instructed multiple times to correct his actions on what would reasonably be considered basic tasks in the course of his duties, some of which were related to officer safety." Phase 3 of Field Training Petitioner then proceeded to Phase 3. Upon completing Phase 3, a written review evaluation summary, dated Apri I 1, 2023, noted again that Petitioner's performance was ''unacceptable'', and "generally did not meet performance expectations" and it was recommended that "the recruit be failed for this segment of training." It was specifica!ly noted that while Petitioner appeared professional and eager to learn, he ;'needs improvement on safety tactics and report writing" and to "familiarize himself with the daily functions of a police officer and improve social skills when interacting with the public." A separate end of Phase Evaluation Summary, dated April I, 2023, was prepared and again signed by Petitioner, recommending that at this point, Petitioner receive a remedial extension training. Remedial ]raining The Remedial Phase included another simulator training session on April 21, 2023. An evaluation noted that Petitioner had "difficulty comprehending the instructions he was given" had "difficulty explaining his conduct" and " ... exhibited an inability to understand the dynamic and fluid nature of decision making that police work requires." 158756/2023 VIJUNGCO, JUSTIN vs. METROPOLITAN TRANSPORTATION AUTHORITY Page 2 of 5 Motion No. 001 [* 2] 2 of 5 INDEX NO. 158756/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/27/2024 Following the Remedial Phase, a Review Evaluation Summary dated April 22, 2023 and signed by Petitioner, noted that Petitioner had improved in the administrative functions of becoming a police officer and a strong dedication to completing summonses and reports in a timely manner. However, it was also noted that during busy times, Petitioner became uncomfortable and needed to improve his calm demeanor and command voice. It was also noted that Petitioner needed to improve communicating with subjects during stops and to "make appropriate decisions and maintain officer safety." Notably, the reviewing sergeant specifically indicated that "f a]s a patrol supervisor, [he did] not believe Officer Vijungco is confident enough at this time to be able to solo patrol which is a necessary function of the MT A Police Department." Petitioner's evaluation was again signed by Petitioner and found to be "unacceptable." Resignation By memo dated April 27, 2023, a summary of Petitioner's probationary period was submitted to a Chief of Police. Based upon negative daily observation reports, evaluations and emails, the MTAPD concluded that Petitioner's performance did not meet expected levels. On May 8, 2023, Petitioner resigned. The letter states "IP"llease accept this letter as my formal notice of resignation from Probationary Police Officer with the MT A Police Department, effective today May 8, 2023 .'' About a week later, on May ·,s, 2023, Petitioner submitted a letter via email to the MTAPD Human Resources Department. Therein he asked to ';appeal the decision made to me to voluntary resign." In the letter Petitioner acknowledges that he was advised during an in-person meeting with Captain Pisanel!i and Lieutenant Echevarria that as he did not pass field-training he would be terminated or alternatively, he could resign and return in the future. Petitioner further acknowledges that as he wanted the opportunity to return, he voluntarily resigned. Hy email correspondence dated May 18, 2023, MTAPD advised Petitioner that he would not be reinstated as a probationary officer. 158756/2023 VIJUNGCO, JUSTIN vs. METROPOLITAN TRANSPORTATION AUTHORITY Page 3 of 5 Motion No. 001 [* 3] 3 of 5 INDEX NO. 158756/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/27/2024 Petitioner now moves pursuant to Article 78 to 1) annul and rescind his resignation as a probationary police officer with the MT A and 2) be reinstated as a probationary police officer. Specifically, the Petition alleges that "[t]he determination to force [Petitionerl to resign in lieu of being terminated was arbitrary, capricious, in bad faith, and an abuse of discretion. Discu.