In the Matter of Albert Hyman, Appellant, v. Douglas H. White, as Personnel Director of the City of New York, et al., Respondents

In the Matter of Albert Hyman, Appellant, v Douglas H. White, as Personnel Director of the City of New York, et al., Respondents. [617 NYS2d 178] [MAJORITY] Judgment, Supreme Court, New York County (Eugene Nardelli, J.), entered on or about August 25, 1993, which, after a hearing, denied petitioner’s application pursuant to CPLR article 78 to annul respondents’ determination to terminate petitioner from his position as a probationary assistant electrical engineer, and dismissed the petition, unanimously affirmed, without costs. There is no merit to petitioner’s argument that respondents abused their discretion in not crediting the nearly two years petitioner served as a provisional electrical engineer toward his probationary period in the job title to which he was originally appointed and then demoted: assistant electrical engineer. Department of Personnel rule 5.2.5 (59 RCNY Appendix A) provides that when "a probationer who has not completed a probationary term has been granted a leave of absence to accept appointment on a provisional * * * basis”, the period of service in such position may, "in the discretion of the agency head who appointed such person”, be counted as "satisfactory probationary service in determining the completion of such probationary term.” Respondents’ decision not to exercise that discretion in favor of petitioner was based upon their negative evaluation of petitioner’s service as a provisional employee that had support in the evidence developed at the hearing, and, therefore, was not arbitrary and capricious. We have considered petitioner’s remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Carro, Rosenberger, Williams and Tom, JJ.