Decided and Entered: July 09, 2026

Index No. 160076/22|Appeal No. 7043|Case No. 2025-04658|

Before: Renwick, P.J., Kapnick, Pitt-Burke, Rosado, Hagler, JJ.

[*1]

Judgment (denominated an order), Supreme Court, New York County (J. Machelle Sweeting, J.), entered May 6, 2025, granting the petition to annul the determination of respondent New York City Department of Correction (DOC), dated July 28, 2022, which demoted petitioner, unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

The court should have denied the petition to annul DOC's determination to demote petitioner from his provisional appointment as assistant deputy warden to his former permanent position of captain. Provisional appointments made pursuant to Civil Service Law § 65 "carry no expectation nor right of tenure" and are not entitled to the protections afforded permanent employees under Civil Service Law § 75 (Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 NY3d 465, 471 [2007]). A provisional employee may "be terminated at any time, without a hearing, for almost any reason, or for no reason at all," so long as the termination does not violate any constitutional or statutory provision and is not arbitrary and capricious or done in bad faith (Mahinda v Board of Collective Bargaining, 91 AD3d 564, 567 [1st Dept 2012]).

Petitioner's demotion without a hearing did not violate Civil Service Law § 75 because petitioner failed to demonstrate that his appointment as assistant deputy warden was permanent rather than provisional. Petitioner's appointment letter begins with the prominent, unambiguous heading, "Provisional Appointment," and mentions no probationary period, which is consistent with City policy excluding provisional titles from the probation requirement (see Department of Citywide Admin. Servs., Personnel Services Bulletin 200-6 [Dec. 3, 2021], at 1, available at https://www.nyc.gov/assets/dcas/downloads/pdf/reports/200_6.pdf [last accessed June 2, 2026]). Those features contrast petitioner's earlier letter appointing him to the permanent role of captain, which stated that the appointment was "on a probable permanent basis" and notified him that he would serve a "one year probationary period."

Petitioner's provisional appointment did not ripen into a permanent one after a one-year probationary period. "Such appointments are mere stop-gaps" and may be succeeded by a permanent appointment only as a result of an examination and eligibility under the civil service laws and "not by reason of any ripening of the . . . provisional appointment into a permanent appointment" (City of Long Beach, 8 NY3d at 741 [internal quotation marks omitted]; see Matter of Lee v Albany-Schoharie-Schenectady-Saratoga Bd. of Coop. Educ., 69 AD3d 1289, 1291 [3d Dept 2010]). Furthermore, the record contains no evidence that petitioner was ever on probation.

[*2]

That petitioner was issued charges and specifications notifying him of his right to a hearing does not suggest that his appointment as assistant deputy warden was permanent. Petitioner's underlying permanent position of captain entitled him to charges and a hearing before being removed from DOC or issued other discipline, such as a loss of vacation days (see Civil Service Law § 75[1][a]). However, his provisional appointment as assistant deputy warden could be "terminated at any time without charges preferred, a statement of reasons given or a hearing held" (City of Long Beach, 8 NY3d at 471 [internal quotation marks omitted]).

Petitioner's race, gender, and disability discrimination claims pursuant to the State and City Human Rights Laws fail because the record contains no evidence giving rise to an inference of discrimination (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 35 [1st Dept 2011], lv denied 18 NY3d 811 [2012]). The sparse evidence in the record related to petitioner's two purported comparators does not establish that they were similarly situated to petitioner in all material respects (see Etienne v MTA N.Y. City Tr. Auth., 223 AD3d 612, 612 [1st Dept 2024]).

Petitioner points to no additional evidence that DOC's determination to demote him following a series of violations of DOC rules and regulations was arbitrary and

capricious or done in bad faith (see Mahinda, 91 AD3d at 567; Matter of Bonacarti v Mayor's Off. of Criminal Justice, 214 AD3d 445, 446 [1st Dept 2023], lv denied 40 NY3d 902 [2023]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: July 9, 2026