Matter of Kahn v City of New York |
2020 NY Slip Op 05139 [186 AD3d 1159] |
September 29, 2020 |
Appellate Division, First Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
In the Matter of MD Nayeem Kahn, Appellant, v City of New York et al., Respondents. |
Glass & Hogrogian LLP, New York (Bryan D. Glass of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.
Judgment, Supreme Court, New York County (W. Franc Perry, J.), entered May 8, 2019, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 challenging respondent New York City Department of Education's placement of a "problem code" in petitioner's employment file in 2015, and its refusal of his request to begin an employment investigation to remove the code, unanimously affirmed, without costs.
Respondent is not prohibited from considering the past discontinuance of petitioner's probation in assessing his eligibility for employment, and assignment of the problem code based upon the discontinuance of his probationary employment is neither arbitrary nor capricious (see Matter of Pepin v New York City Dept. of Educ., 148 AD3d 443 [1st Dept 2017], lv denied 29 NY3d 912 [2017]). Petitioner lacks entitlement to an employment investigation to remove the code without a nomination for employment (see Chancellor's Regulation C-205 [25] [c]; Pepin, 148 AD3d at 443; see also e.g. Matter of New York City Yacht Club v New York City Dept. of Bldgs., 172 AD3d 606 [1st Dept 2019], lv denied 33 NY3d 914 [2019]). Concur—Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.