Opinion
April 27, 1971
Appeal from a judgment of the Supreme Court, Broome County, which dismissed appellant's application, in a proceeding under CPLR article 78, to direct her reinstatement as Senior Account Clerk with the Broome County Department of Audit and Control and confirm the employment as a permanent appointment. Appellant, an account clerk with the Broome County Department of Audit and Control, was appointed to the position of Senior Account Clerk for a probationary period of 26 weeks to begin January 1, 1970 and to end July 2, 1970. On June 22, 1970 appellant was informed that her services in the position had been unsatisfactory and that her employment would be terminated at the completion of her probationary period. Special Term confirmed her dismissal from the position of Senior Account Clerk, and we concur in Special Term's determination. We find no merit in appellant's allegation that her dismissal was improper because it came after the minimum probationary period and thus she became a permanent employee who could only be discharged after a hearing. Subdivision 1 of rule XIV of the Broome County Civil Service Commission specifically provides for a probationary term ranging from 8 to 26 weeks and that if a probationer is notified before the eight-week minimum period has expired that the probationary period is to be more than the minimum period, the probationer does not become a permanent employee upon the expiration of the minimum time period specified in the rule. Here the letter appointing appellant stated that her probationary term was 26 weeks. And appellant's contention that subdivision 5 of rule XIV was violated because a report was not made to the appointing authority at least two weeks prior to the end of the probationary period is refuted by the evidence in the record. A probationary report recommending that appellant be "dropped" was received by the Broome County Civil Service Commission on June 17, 1970, 15 days before appellant's probationary status had expired. In addition, appellant, pursuant to rule XIV, was personally notified that her employment was to be discontinued. Similarly, appellant's mere assertion that she "believes" her dismissal was predicated on a refusal to contribute to a political fund did not present a factual issue requiring a trial ( Matter of Smith v. Chambers, 32 A.D.2d 949, affd. 26 N.Y.2d 876). There was no claim that this was, in fact, the case, nor was any tangible fact or substantial circumstance offered to support that conclusion. Nor on the instant record can it be found that appellant's dismissal from the position of Senior Account Clerk was arbitrary and capricious. Considering the allegations by Comptroller Plummer as to appellant's objectionable conduct set forth in his affidavit and in charges which partially covered her probationary period as Senior Account Clerk, it cannot be said that the Comptroller's decision of dismissal was not made in good faith (e.g., Matter of Gordon v. State Univ. of N.Y. at Buffalo, 35 A.D.2d 868). Finally, appellant urges here that in any event she be declared entitled to reinstatement in her former position as Account Clerk. However, that issue was not raised in her position or in the lower court, and since there was no request for such relief previously from either the court or respondents, it cannot be decided here initially. Judgment affirmed, without costs. Reynolds, J.P., Staley, Jr., Cooke and Sweeney, JJ., concur; Greenblott, J., not voting.