Smith v. Abate

—Judgment, Supreme Court, New York County (Stuart Cohen, J.), entered on or *450about January 5, 1994, which denied petitioner’s application pursuant to CPLR article 78 to annul respondents’ determination terminating petitioner’s employment as a probationary correction officer, and dismissed the petition, unanimously affirmed, without costs.

Petitioner’s probationary employment as a correction officer was terminated after he tested positive for cocaine in a random urinalysis test. Such testing is constitutionally permissible (Matter of McKenzie v Jackson, 75 NY2d 995). The affidavits of petitioner and his half-brother that the half-brother "spiked” petitioner’s drink with cocaine the night before the test because petitioner had refused to give the half-brother money, while perhaps sufficient to raise an issue of unknowing ingestion were petitioner a tenured employee (cf., e.g., Matter of Harmon v New York City Police Dept., 188 AD2d 429, lv denied 82 NY2d 652), are insufficient to raise an issue of bad faith necessary to warrant a hearing into the termination of a probationary employee (Matter of Soto v Koehler, 171 AD2d 567, 568, lv denied 78 NY2d 855). ConcurWallach, J. P., Rubin, Ross, Asch and Mazzarelli, JJ.