Bazemore v. Koehler

Judgment, Supreme Court, New York County (Leonard Cohen, J.), entered on November 28, 1989, which dismissed the petition brought pursuant to CPLR article 78 seeking to annul a determination of respondent Correction Commissioner, dismissing petitioner from his position as a probationary correction officer, unanimously affirmed, without costs.

On June 6, 1989, petitioner, a probationary correction officer, while off duty, shot and killed a person who allegedly *575attempted to stab an acquaintance of the petitioner. The officer failed to immediately report the incident, but voluntarily turned himself in two days later. Both the officer and his acquaintance were indicted for murder. On June 27, 1989, petitioner was dismissed as a correction officer, the termination retroactive to June 8, 1989, the date he surrendered to the police.

Petitioner argues his termination was arbitrary and capricious, and that he is entitled to a "name-clearing” hearing. We do not agree. A probationary employee may be discharged without a hearing or statement of reasons as long as the discharge was in good faith and without a constitutionally impermissible motive. (Matter of Montero v Lum, 68 NY2d 253.) Further, as petitioner was dismissed without any stated reason, no defamatory impression was created, and he is not entitled to a name-clearing hearing. Concur—Carro, J. P., Ellerin, Kupferman, Kassal and Rubin, JJ.