dissents in a memorandum, as follows: I would reverse and deny respondent’s motion to dismiss and require the respondent file an answer.
Despite an able argument by counsel for the respondent, and while the matter is not free from doubt, there would seem to be no adequate basis for an extension of the probationary period for the time that the petitioner served on a jury.
The petitioner was appointed as a corrections officer and his probationary period continued for one year thereafter. He was terminated without an evidentiary hearing several days after the one year had expired. However, he had served on a jury for 23 days, and if this be taken into account by deducting it from the period of service, then the respondent was within its authority to dismiss him without a hearing.
While this is not before us, it is alleged that the petitioner was dismissed specifically because of jury service (which would be an improper basis if the question is reached).
Judiciary Law § 519 states that anyone who serves as a juror and who notifies his employer may not be subject to discharge or penalty for the period absent while serving. State employees are not only granted leave of absence to serve on a jury, they are paid and there is no charge against their leave credits for the time spent on jury duty. (Civil Service Rules § 21.9 [4 NYCRR].) Insofar as jury service is encouraged, the petitioner should not be penalized because of it and, therefore, it should not be added to the probationary status time.
Moreover, the rule involved of the City Personnel Director (General Order No. 7) lists for an extension the following: “Sick leave, annual leave, compensatory time, medically monitored duty, absence without leave or suspension from duty without pay.”
It can be seen from the language that this is actually personal time and not public duty time, and therefore should not be equated.