| Matter of Rivera v New York City Dept. of Sanitation |
| 2016 NY Slip Op 05837 [142 AD3d 463] |
| August 18, 2016 |
| Appellate Division, First Department |
[*1]
| In the Matter of Carlos Rivera,Respondent, v New York City Department of Sanitation et al.,Appellants. |
Zachary W. Carter, Corporation Counsel, New York (Michael J. Pastor of counsel),for appellants.
Glass Krakower LLP, New York (John Hogrogian of counsel), for respondent.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered June 10,2014, upon respondents' purported default, granting the petition brought pursuant toCPLR article 78 to annul respondents' determination, dated February 14, 2013, whichterminated petitioner's probationary employment as a sanitation worker, and order, samecourt, Justice and date of entry, which denied respondents' motion to vacate the defaultjudgment, unanimously reversed, on the law, without costs, the motion to vacate thedefault judgment granted, the petition denied, and the proceeding dismissed.
CPLR 5015 (a) (1) requires a movant seeking to vacate a default to move within oneyear of entry of the default and to show a reasonable excuse for the default as well as ameritorious defense (see YouniGems Corp. v Bassco Creations Inc., 70 AD3d 454, 455 [1st Dept 2010], lvdismissed 15 NY3d 863 [2010]). Respondents timely moved to vacate the default. Itshould be noted that petitioner did not oppose the application.
On the merits, respondents cite "law office failure" as a reason for the default. Undercertain circumstances, law office failure may provide a reasonable excuse for a default(see e.g. Goodwin v New YorkCity Hous. Auth., 78 AD3d 550, 551 [1st Dept 2010]). At oral argument,respondents essentially conceded that, in this e-filed case, their office failed to regularlycheck its email and, as a result, was unaware of the motion court's order that gave rise tothe default. Respondents' excuse was sufficiently particularized and there is no evidenceof wilful or contumacious conduct on their part (see Reyes v New York City Hous.Auth., 236 AD2d 277, 279 [1st Dept 1997]).
Additionally, respondents have demonstrated the existence of a meritorious defense.Petitioner was a probationary employee who was arrested and charged with DWI whilestill on probationary status. His commercial driver's license, a requirement for asanitation worker, was suspended and then revoked as a result. Several disciplinarycomplaints were filed as a result of this incident and he was subsequentlyterminated.
"A probationary employee may be discharged without a hearing or a statement ofreasons, in the absence of a demonstration that [his] termination was made in bad faith,for a constitutionally impermissible purpose, or in violation of statutory or decisionallaw" (Matter of Turner vHorn, 69 AD3d 522, 522 [1st Dept 2010]). The record before us clearlyestablishes that there were legitimate reasons for terminating petitioner's employment,specifically, his arrest [*2]and the revocation of hislicense[FN*] (see Matter of Cipolla v Kelly,26 AD3d 171 [1st Dept 2006]). This is a valid reason for termination even if thecharges for which he was arrested were later withdrawn or dismissed (see e.g. Matterof Holder v Sielaff, 184 AD2d 228 [1st Dept 1992]).
Since respondents' failure to timely file an answer was neither wilful, nor part of apattern of dilatory behavior, and petitioner points to no evidence that the short (threemonth) period of default caused him to change his position, and he has demonstrated noother prejudice, and in view of the strong public policy of disposing of cases on theirmerits, the motion court improvidently exercised its discretion in denying respondents'motion to vacate the default (DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581 [1st Dept2011]). Concur—Sweeny, J.P., Acosta, Feinman, Kapnick and Webber, JJ.
Footnote *:Although petitionerclaims that his license has since been restored, this claim is dehors the record and cannotbe considered by us (Vick vAlbert, 47 AD3d 482, 484 [1st Dept 2008], lv denied 10 NY3d 707[2008]).