Matter of Bruscino v Kelly
2012 NY Slip Op 03516 [95 AD3d 447]
May 3, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 27, 2012


In the Matter of Severio L. Bruscino, Appellant,
v
Raymond W. Kelly, as Police Commissioner of the City of New York, et al., Respondents.

[*1] Robert G. Del Grosso, Mineola, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Lisa A. Giunta of counsel), for respondents.

Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered June 30, 2010, dismissing a CPLR article 78 petition seeking to annul respondents' determination, dated March 23, 2009, which terminated petitioner's probationary employment as a police officer, unanimously affirmed, without costs.

Supreme Court properly determined that the petition failed to state a claim. Respondents are entitled to discharge a probationary police officer "for 'almost any reason, or for no reason at all' as long as it is not 'in bad faith or for an improper or impermissible reason' " (Matter of Duncan v Kelly, 9 NY3d 1024, 1025 [2008], quoting Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]; see Matter of Berenhaus v Ward, 70 NY2d 436, 445 [1987]). At its essence, the petition alleges that petitioner's failure to disclose the psychological treatment he underwent at the age of six was inadvertent. However, even if petitioner was " 'ignorant,' 'unaware' [of], or 'oblivious' " to his personal history, respondents are entitled, given the broad discretion with which they are vested, to deem "such omissions a[s] material to his qualifications" (Matter of Roman v Brown, 202 AD2d 321 [1994], lv denied 83 NY2d 760 [1994]). Even assuming the truth of the petition's allegations, the petition fails to allege any facts that would, if proven to be true, constitute a violation of "statute or policies established by decisional law" (Matter of Talamo v Murphy, 38 NY2d 637, 639 [1976]; see Matter of York v McGuire, 63 NY2d 760[*2][1984]). Petitioner has also failed to allege facts supporting a conclusion that his termination was in bad faith. Given this failure, a hearing to resolve the truth of the facts alleged is unnecessary (see Matter of Bienz v Kelly, 73 AD3d 489 [2010]). Concur—Saxe, J.P., Sweeny, Moskowitz, Freedman and Manzanet-Daniels, JJ.