Opinion
Argued November 18, 1993
Decided December 21, 1993
Appeal from the Supreme Court, New York County, Eugene L. Nardelli, J.
O. Peter Sherwood, Corporation Counsel of New York City (Fred Kolikoff and Larry A. Sonnenshein of counsel), for appellant.
Paul L. Dashefsky, Smithtown, for respondent.
MEMORANDUM.
The judgment of Supreme Court and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.
Petitioner, a probationary Correction Captain, could have been demoted to Correction Officer without a hearing unless he established that the demotion was for an improper reason or in bad faith (see, Matter of Johnson v Katz, 68 N.Y.2d 649, 650; Matter of York v McGuire, 99 A.D.2d 1023, 1024, affd 63 N.Y.2d 760). Respondent Department of Correction presented evidence that petitioner had failed to inspect roll call, had failed to respond to a breach of security, had disobeyed a direct order to transfer prisoners in response to the breach, and had sexually harassed a subordinate, supporting the conclusion that petitioner's performance was unsatisfactory and the demotion was in good faith. On this record, we agree with the dissenting Justices at the Appellate Division that the purported evidence of bad faith failed to raise a triable issue of fact.
Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., BELLACOSA, SMITH and LEVINE concur in memorandum.
Judgment of Supreme Court and order of the Appellate Division brought up for review reversed, etc.