Gray v. Director, Bronx Development Services

Sullivan and Carro, JJ.,

dissent in a memorandum by Carro, J., as follows: There is something very wrong here although the scant record makes it well-nigh impossible to describe with particularity. As a probationary employee petitioner was nonetheless entitled to a pretermination hearing where the stated reason for dismissal literally came on the heels of, and overlapped with, an allegation of patient abuse. (Compare Matter of Horowitz v Roche, 70 AD2d 854; Board of Regents v Roth, 408 US 564.) The spectre of the earlier stigmatizing charge was not dispelled by the vague assertion that she “was not terminated for patient abuse but rather for acting outside the scope of her job description by counseling a patient, a job for which she was not trained * * * nor has authority to do.” Both charges stem from the same patient incident and, in fact, the New York State job description for petitioner’s position unequivocally states that a mental hygiene therapy aide, working in a hospital, “counsels, talks with, and reassures patients”. We recognize the great discretion vested in the administrator, especially respecting probationary employees. And had the proper due process hearing been held and a like determination made upon substantial evidence, there would be no place for judicial dispute with the choice made. (E.g., Matter of Collins v Codd, 38 NY2d 269.) But it is fundamentally unfair to leave petitioner with the scourge of unresolved accusations, and a perfunctory statement in an affidavit attached to the pleadings is no salve.