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Cohen v. Koehler

82 N.Y.2d 882 Court N.Y. Decision date 1993-12-21 English

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p. 882
[631 NE2d 113, 609 NYS2d 171]
In the Matter of Irwin Cohen, Respondent, v Richard Koeh
p. 883
ler, as Commissioner of the Department of Correction of the City of New York, Appellant.
Argued November 18, 1993;
decided December 21, 1993
p. 884
APPEARANCES OF COUNSEL
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.

OPINION OF THE COURT

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 NY2d 649 , 650; Matter of York v McGuire, 99 AD2d 1023 , 1024, affd 63 NY2d 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

p. 885
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.

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