SHORT FORM ORDER INDEX NO.

: 05898/2016

SUPREME COURT - STATE OF NEW YORK

I.A.S. PART 38 - SUFFOLK COUNTY

PRESENT:
Motion Submit Date: 04/20/17
HON. WILLIAM G. FORD Motion Seq #: 001 MD; CASE DISP
JUSTICE SUPREME COURT

____________________________________ ~x

In the Matter of the Application of PETITIONER'S COUNSEL:

Wickham Bressler & Geasa, P.C.
GARRETT LAKE 13015 Main Road, POB 1424
Mattituck, NY 11952
Petitioner,
RESPONDENT'S COUNSEL:
Devitt Spellman Barrett, LLP.
For a Judgment Pursuant to CPLR Article 78 50 Route III
Smithtown, NY 11787
-against-
Town of Southold
Town Hall Annex,
THE TOWN OF SOUTHHOLD, 54375 Route 25, POB 1179
Southold, NY 11971
Respondent.
_____________________________________ x

Upon the following papers read on the Verified Petition pursuant to CPLR Article 78; Notice of Petition and Verified
Petition dated June 10,2016, Memorandum of Law in Support and supporting papers dated January 20, 2017; Verified Answer
dated August 18, 2016; Memorandum of Law in Opposition dated March 9, 2017; Reply Affirmation further support and
supporting papers dated January 20, 2017; (alld aftel hell! ing eotlll~el in !t1l'l'oI1ll!ld ol'l'o!cd' to the motion) it is,

ORDERED that the this special proceeding commenced by petitioner's Verified

Petition pursuant to CPLR Article 78 seeking a judicial determination vacating, setting
aside or otherwise annulling respondent's determination terminating his probationary
employment, as well as his accompanying request for an order of reinstatement to his
prior civil service position are denied for the reasons that follow.

FACTUAL BACKGROUND & THE PARTIES' CONTENTIONS

Before the Court is a special proceeding commenced pursuant to CPLR Article 78

brought by petitioner Garret Lake (hereinafter "Lake" or "petitioner") seeking judicial
review of an administrative determination made by respondent the Town of Southold
("thc Town," "Southold" or "respondent" respectively).

Lake was hired as a probationary police officer with the Southold Town Police
Department on November 24, 2014 subject to an 18 month probationary period set to
terminate on May 23, 2016. Four days prior to successfully completing his probation on
May 19, 20 l6, Lake was advised by the commanding officer of the Town Police
Department, Chief Martin Flatley that the Town Board would convene later that day to
consider a resolution calling for his termination. Consistent with this revelation, the
Town Board did meet and unanimously approve a resolution which effectively terminated
petitioner's probationary employment. No reason was provided to Lake for his summary
dismissal. although by virtue of this proceeding, he alleges an improper motive.

As pled in the Verified Petition, I ake surmises that his involvement in two high
profile arrests played a large role in the termination of his employment with the Town.
First. he alleges that he was the arresting officer of Steven Romeo, an alleged drunk
driver of a pickup truck involved in a tragic motor vehicle accident with a limousine at
County Road 108 within the Town of Southold which claimed the lives of four young
women. Lake s involvement in that accident entailed being instructed by his supervisor.
Lt. James A. Ginas, to locate Romeo, return him to the accident scene, and further
investigate. Having complied with his lieutenant s instructions, Lake observed Romeo in
an alleged inebriated condition and administered a field sobriety examination. The result
of that examination provided Lake with probable cause to believe that Romeo was under
the influence of alcohol, and he was directed by Ginas to plaee Romeo under arrest for
the suspicion of OWL Petitioner then transported Romeo to Eastern Long Island Hospital
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Petitioner claims that the arrestee Romeo had a close friendship with local
Republican politicians James Helf and Joseph Sawicki, Jr, a local Southold party chair
and Suffolk County assistant deputy police commissioner for finance respectively. Lake
essentially argues that his arrest of Romeo angered Hclf, prompting Helfto intercede and
advocate on Romeo's behalf, interfere and obstruct an ongoing DWl investigation at the
accident scene, and to criticize his performance and call for his termination before the
police department and the Town Board. Petitioner additionally alleges that Sawicki also
questioned the propriety of Lake's arrest of Romeo. At bottom, petitioner contends that
Hell' and Sawicki's advocacy on Romeo's behalf constituted improper or illegal political
influence that created pressure on the police department and Town Board forming an
unlawful basis for his abrupt departure from the Town police.

Lake also cites involvement in an additional high profile arrest as the impetus for
heing the target for improper or unlawful political retaliation. On February 13, 2016,
Lake patrolled the Mattituck sector when he received a call from a fellow police officer in
the adjoining Southold sector over the radio to he on the lookout for a damaged tire
department vehicle, suspected to have fled the scene of a single car motor vehicle

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accident. Petitioner observed the described vehicle belonging to the Jamesport Fire
Department's Assistant Chief and stopped it on suspicion for fleeing an accident scene.
r lc also observed damage to the vehicle's windshield and front grille consistent with
coming into contact with traffic signs. In approaching the vehicle, Lake alleged that he
observed that the vehicle's operator indicated objective signs of being under the influence
of alcohol and he administered a field sobriety examination pursuant to his supervisor's
instruction. Finding the vehicle's operator under the influence, Lake placed him under
arrest for suspicion of DWL

Arising out of this arrest, pcuuoncr alleges that undue influence or additional
improper politically motivated pressure was asserted by the Jamesport Fire Department
against him on the respondent. Specifically, after the event, Lake claims that tire
department personnel criticized his arrest of their fire chief. Further, petitioner asserts
that the department was afforded preferential treatment or special privileges in being
permitted access to certain footage of the arrest.

Petitioner argues that his summary dismissal and failure of his probation was
arbitrary, capricious, or otherwise irrational because he was a good performing
probationary police officer. He states that in 2015 he was commended by Suffolk County
Mothers Against Drunk Driving (MADD) for making the most OWl arrests in his
department. Further. he claims that he made the most DWl arrests of any officer in his
department in 2015, and on a prorated basis in 2016 before his dismissal as well. Lastly,
in March 20 I6, petitioner notes that he received an employment performance evaluation
where he rated at meeting his employer's standards and expectations. Thus, Lake
disputes the notion that he was a poor performer in any regard. Moreover, given the close
temporal proximity between his favorable performance evaluation and his dismissal,
petitioner states that the idea that he performed poorly is pretext.

Lake seeks reinstatement to the status quo ante as his preferred remedy, r.e.
reappointment as a probationary police officer just prior to the expiration of the
probationary period.

Arguing in opposition to the Petition, respondents argue that its dismissal of Lake
was soundly reasoned and wholly supported by the rational and credible evidence. Thus,
the Town argues that viewing petitioner's tenure during probation as a whole, it acted
reasonably in summarily dismissing him. First, the Town notes that as a probationary
employee, Lake was not entitled to any reason for his dismissal within the probationary
period, so long as it was not for illegal, or unconstitutional bases. Respondent further
contends that petitioner's involvements in the two high profile arrests cited above played
no role at all in his dismissal. Rather, respondent through affidavit testimony provided by
Police Chief Flatley found Lake's use of police action and tactics in making both of those
DWI arrests sound and justified.

That notwithstanding, respondent avers poor or problematic performance on

Lake's part as the reason for his dismissal. Specifically, as stated by Flatley in his

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affidavit opposing the Petition, respondent, while not finding Lake to be the worst
performer in the department, had received certain civilian complaints painting petitioner
to be overaggressive and overzealous in his use of police tactics in conducting vehicle
traffics stops, searches and arrests. Those complaints were investigated and prompted
Chief Flatley to review Lake's department issued vehicle camera and body microphone
audio and video recordings focusing on review of stops, searches, arrests by Lake. More
specifically, Flatley reviewed arrests made by petitioner on July 14,2015 where a woman
complained about harassment. Respondent contends that complaint could neither be
substantiated or unfounded. Flatley also reviewed footage of an arrest made by petitioner
on August 28,2015 for DWI.

Based upon review of this footage, Flatley identified a concern regarding

unjustified and questionable use of police action by Lake so far as the probable cause or
justification for stops and searches which was not always objectively evident.
Furthermore, Flatley testified that Lake did not always deploy his body microphone as
required by departmental protocol, thus when civilian complaints were lodged against
him for unjustified or overly aggressive use ofpolicc action, respondent could not rely on
footage to corroborate or refute the lodged complaints.

Petitioner was counseled by Flatley on October 6, 2015 in respondent's efforts to

redirect petitioner from overly aggressive poliee action. It is alleged that Lake learned at
the time that he was the subject of at least one civilian complaint. Further, on November
13, 2015, Lake attended a training session offered by the Suffolk County District
Attorney's Office, East End Bureau for additional instruction or retraining concerning
proper vehicle traffic stops and searched. Respondent contends, disputed by petitioner,
that the impetus for the training was to provide petitioner with retraining on proper
justi fication for stops, searches and seizures.

Subsequently, Flatley after further arrest video review identified other problematic
or questionable arrests made by Lake for criminal possession or narcoties on November
22 & 23, 2015. There Flatley was dissatisfied with petitioner's articulated grounds for the
searches leading to the arrests and provided additional counseling to the petitioner.

Respondents further outline additional instances where Lake was counseled for
problematic or unjusti tied exercise of law enforcement action on April 16 and May 16,
2016. Essentially, respondent argues that despite being counseled and offered additional
training, petitioner persisted with his overaggressive, and at times, questionable police
tactics. Thus, in early 2016, Flatley appeared before the Town Board and briefed its
elected officials on petitioner's progress during probation, including his concerns
regarding Lake's police tactics and the resulting civilian complaints. Thereafter Flatley
made a recommendation at exeeutivc session before the Town Board at the Town
Supervisor's request given his concerns that petitioner not be offered a continued role as a
permanent police officer. Accordingly, the Town Board accepted that recommendation
and voted for and enacted the resolution formalizing petitioner's summary dismissal.

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 In response to petitioner's contentions of undue or improper political influence,
motivation or retaliation underlying Lake' s dismissal, respondent denies that Hcl r,
Sawicki or the Jamesport Fire Department ever criticized petitioner or called for his
dismissal. Assuming arguendo, respondent then argues that petitioner has failed to
adduce any competent or admissible proof: despite being given the opportunity to conduct
limited discovery in this matter, to show that the police department or the Town Board
took into consideration any politician's critique in making their determination ending
Lake's employment. Instead respondents emphasize that petitioner, at best, has offered
innuendo and unsupported speculation, viewed in its best light for petitioner, that stand:
for the proposition that citizens who happened to be political or hold political
offices/roles made complaints. Thus respondent argues that petitioner fails to offer any
proof at all demonstrating a causal connection between any complaint made by any public
official or politically connected individual against him and his ultimate termination
besides rumor, surmise or supposition.

In response and in further support of his petition, Lake has disputed that he was a
poor performer and offers self-serving justification for all of his police action, having
reviewed the arrests respondent claims were problematic.

STANDARD OF REVIEW & LEGAL DISCUSSION

Within the context of a dismissed probationary employee's proceeding seeking to

undo his or her dismissal, it is well settled that the employment of a probationary
employee may be terminated without a hearing and without a statement of reasons in the
absence of a demonstration that the termination was in bad faith, for a constitutionally
impermissible or an illegal purpose, or in violation of statutory or decisional law.
Accordingly, judicial review of the discharge of a probationary employee is limited to
whether the determination was made in bad faith or for the other improper or
impermissible reasons (Lane v City of New York, 92 AD3d 786, 786, 938 NYS2d 597,
598-99 [2d Dept 2012]). Put differently, to succeed petitioner must successfully carry his
"burden of raising a material issue as to bad faith or illegal reasons, and conclusory
allegations of misconduct or unlawfulness are insufficient to meet this burden"
(Petkewicz v Allers, 137 AD3d 1045, 1046,27 NYS3d 263, 264 pd Dept 2016\); see
also Santoro v County of Suffolk, 20 AD3d 429 430, 798 NYS2d 508, 509-10 [2d Dept
200511 petitioner bears the burden of presenting competent proof of the alleged bad faith,
the violation of statutory or decisional law, or the unconstitutional or illegal reasons];
Johnson v County of Orange, 138 AD3d 850, 851, 29 NYS3d 502, 503-04 pd Dept
2016], appeal dismissed, 27 NY3d 1120, 57 NE3d 68 12016][petitioner was not entitled
to a statement of the **504 reason for the termination of her probationary employmentJ).

Moreover, it is axiomatic that substandard performance by a public employee

provides the public employer with a rational basis for an administrative determination to
summarily dismiss that employee, particularly where said employee was given ample
opportunity to improve (Bienz v Kelly, 73 AD3d 489, 490, 901 NYS2d 199, 200 11st
Dcpt 2010!).

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 That being said, it is also true that where an issue of substantial nature is raised
alleging the termination was not due to the failure to perform satisfactory service during
the probationary period, but was due to causes unrelated to work performance, a hearing
may be required to resolve such issue, because in this context, the dismissal may be
arbitrary and capricious (Miciotta v Mcstickens, 118 AD2d 489, 491, 499 NYS2d 960,
962 rlst Dcpt 1986]).

ANALYSIS & APPLICATION

Based on all of the circumstances presented, the parties' vigorously argued

positions and the instant record, this Court finds and determines that petitioner has failed
to sustain his burden of demonstrating, by capable and competent proof: a triable issue of
fact that his dismissal from probationary employee status was motivated by illegal,
impermissible or unconstitutional political motivations or retaliation.

At the outset, the Court notes that petitioner sought to litigate two divergent
theories. First. petitioner argued that respondent's assertion of poor performance was
pretext and unworthy of belief given that within 2 months of his dismissal, petitioner
received a favorable employment evaluation. Secondly petitioner argued that his
dismissal was the result of interference, undue inf1uenee and meddling by connected local
politicians in retaliation for him properly performing his police duties. However, the
applicable case law makes clear that the appropriate standard of judicial review is
whether petitioner pleads and proves, the existence of improper, impermissible, illegal, or
unconstitutional motives. Lake is not claiming memhership in any perceivable statutorily
protected or suspect classification. Thus, his challenge is not one for invidious or illegal
discrimination such that would be appropriate for analysis under federal, state or local
antidiscrimination law. Instead, petitioner's burden was to provide evidence that
respondents bowed to undue or improper political intluence in deciding to terminate his
employment.

Respondents have capably rchutted the assertion that petitioner's dismissal was the
product of such ulterior motive. Where Lake provided that affidavit of Christopher
Talbot, a former Southold Town Board member, for the proposition that within the local
Southold Republican party, there was rumor that Helf and Sawicki applied pressure and
influence to terminate plaintiff, what is missing is any further evidence supplying a causal
Iink of that hearsay to the challenged outcome: Lake's dismissal. Thus, at best, petitioner
has plead an improper motive but failed to raise substantial evidence to warrant a hearing
to second guess respondent's administrative decision. Where a probationary employee
fails to sustain his burden of adducing competent and admissible proof to support an
inference that his summary dismissal W(,lS due to bad faith or an illegal or unconstitutional
basis, no further evidentiary hearing is required (Triola v Daines, 125 AD3d 676, 677, 3
NYS3d 113, 114 [2d Dcpt 2015J, lv to appeal denied, 26 NY3d 917, 47 NE3d 93 12016][
petitioner failed to carry his burden of presenting competent proof that his termination
was improper where record demonstrated that the petitioner's performance was
consistently unsatisfactory despite repeated advice and assistance designed to give him
the opportunity to improve, and, thus, that his discharge was not made in had faith]:
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the opportunity to improve, and, thus, that his discharge was not made in bad faith I;
Butler )I Abate, 204 AD2d 171. 172,612 NYS2d 19,21 [1st Oept 199411. Petitioner's
unsupported allegation of bad faith does not warrant an evidentiary hcaringl).

The assembled record all the more requires this outcome where respondent has
amply supplied proof of questionable performance by the petitioner. Thus, viewing the
administrative record objectively, ample support exists for a reasonable and rational
determination that Lake did not take to counseling and retraining and did not perform up
to respondent's standards, and as a result he was terminated before the expiration of his
probationary period.

CONCLUSION

Based upon all of the foregoing, it is accordingly

ORDERED that branch of the Verified Petition of petitioner Garrett Lake seeking
a judicial determination vacating, annulling or otherwise setting aside as arbitrary and
capricious, abuse of discretion or error of law his dismissal for failing to successfully pass
his probation as a police officer with respondent Town of Southold is hereby DENIED;
and is further

ORDERED that branch of the Verified Petition of petitioner Garrett Lake seeking
an order directing that he be reinstated to the status quo ante as a probationary Town of
Southold police officer is accordingly DENIED; and it is further

ORDERED that respondent serve this decision with notice of entry on petitioner's
counsel forthwith.

The foregoing constitutes the decision and order of this Court.

Settle judgment on notice.

Dated: July 17,2017

Riverhead, New York

WILLIAM G. FORD, J.S.C.

_X_ FINAL DISPOSITION NON-FINAL DISPOSITION