THE PETITIONER, A PROBATIONARY POLICE OFFICER CHALLENGING HIS TERMINATION, RAISED QUESTIONS OF FACT IN THIS ARTICLE 78 PROCEEDING; THEREFORE THE SUMMARY DETERMINATION PURSUANT TO CPLR 409 WAS NOT AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this Article 78 proceeding reviewing the termination of a probationary police officer (Lake) involved questions of fact rendering a summary determination pursuant to CPLR 409(b) improper:

Since Lake submitted sufficient evidence to raise a triable issue of fact as to whether the reasons put forth by the Town were pretextual, the Town was not entitled to a summary determination on the petition (see CPLR 409[b] …). To the contrary, the record presented triable issues of fact as to whether Lake’s employment was terminated in bad faith for reasons unrelated to his job performance … . Under the these circumstances, the matter should be remitted to the Supreme Court, Suffolk County, for an immediate trial … . Matter of Lake v Town of Southold, 2020 NY Slip Op 08064, Second Dept 12-30-20