Vijungco v Metropolitan Transp. Auth.

2024 NY Slip Op 31023(U)

March 6, 2024

Supreme Court, New York County

Docket Number: Index No. 158756/2023

Judge: Denise M. Dominguez

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 34 

INDEX NO. 158756/2023 

RECEIVED NYSCEF: 03/27/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. DENISE M DOMINGUEZ 

.Ju.1-tice 

-·················--·-···----- ---------- -----------------------------------------X 

JUSTIN VTJUNGCO 

Petitioner 

- V -

METROPOLITAN TRANSPORTATION AUTHORITY, 

Respondent 

---------------------------------------------------------------------------------X 

PART 35M 

11",DEX r,;o, 158756/2023 

MOTIO~ SEQ. NO. __ __:_00::.:l'--------

DECISION AND ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 15, 16, 18, 19, 20, 21, 22, 

23,24,25,26,27,28, 29, 30,31,32, 33 

were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) 

For the reasons that follow, this Petition pursuant to CPLR Art. 78, seeking to annul and rescind 

Petitioner JUSTIN VIJUNGCO's voluntary resignation as a probationary police officer with 

Respondent METROPOLITAN TRANSPORTATION AUTI IORITY (MTA) is denied. 

Background 

Petitioner was hired by Respondent's Police Department (MTAPD) in July 2022. He 

graduated the Police Academy in January 2023, at \vhich time Petitioner became a MTAPD 

Probationary Police Oflicer. The probationary period would be for one year. During Petitioner's first 

three months of his probationary period, he was unsuccessful in Phase 2 of field training, Phase 3 of 

field training, and in a third subsequent Remedial Phase. 

Phase 2 of Field Training 

Based on Petitioner's evaluation of Phase 2, Petitioner's performance was found to be 

"unusual" compared to over 800 other officers previously instructed by the evaluating officer. 

Specifically, the otliecr found that Petitioner had "difficulty understanding the appropriate use of force 

158756/2023 VIJUNGCO, JUSTIN vs. METROPOLITAN TRANSPORTATION AUTHORITY 

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NYSCEF DOC. NO. 34 

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in several scenarios and was apparently terrified to speak to the simulator in several stressful scenarios 

and did discharge his weapon at inappropriate times." 

Based on the written evaluation, dated March 3, 2023, and signed by Petitioner, his 

perfonnancc was found to be "unacceptable" and "generally did not meet performance expectations" 

and it \Vas recommended that "the recruit be failed for this segment of training." 

The evaluation further noted that while Petitioner showed signs of progress in some aspects, 

and had the drive to learn, he "appeared to have difficulty retaining information given to him ... needed 

to be reminded and/or instructed multiple times to correct his actions on what would reasonably be 

considered basic tasks in the course of his duties, some of which were related to officer safety." 

Phase 3 of Field Training 

Petitioner then proceeded to Phase 3. Upon completing Phase 3, a written review evaluation 

summary, dated Apri I 1, 2023, noted again that Petitioner's performance was ''unacceptable'', and 

"generally did not meet performance expectations" and it was recommended that "the recruit be failed 

for this segment of training." It was specifica!ly noted that while Petitioner appeared professional and 

eager to learn, he ;'needs improvement on safety tactics and report writing" and to "familiarize himself 

with the daily functions of a police officer and improve social skills when interacting with the public." 

A separate end of Phase Evaluation Summary, dated April I, 2023, was prepared and again signed by 

Petitioner, recommending that at this point, Petitioner receive a remedial extension training. 

Remedial ]raining 

The Remedial Phase included another simulator training session on April 21, 2023. An 

evaluation noted that Petitioner had "difficulty comprehending the instructions he was given" had 

"difficulty explaining his conduct" and " ... exhibited an inability to understand the dynamic and fluid 

nature of decision making that police work requires." 

158756/2023 VIJUNGCO, JUSTIN vs. METROPOLITAN TRANSPORTATION AUTHORITY 

Motion No. 001 

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Following the Remedial Phase, a Review Evaluation Summary dated April 22, 2023 and signed 

by Petitioner, noted that Petitioner had improved in the administrative functions of becoming a police 

officer and a strong dedication to completing summonses and reports in a timely manner. However, it 

was also noted that during busy times, Petitioner became uncomfortable and needed to improve his 

calm demeanor and command voice. It was also noted that Petitioner needed to improve 

communicating with subjects during stops and to "make appropriate decisions and maintain officer 

safety." Notably, the reviewing sergeant specifically indicated that "f a]s a patrol supervisor, [he did] 

not believe Officer Vijungco is confident enough at this time to be able to solo patrol which is a 

necessary function of the MT A Police Department." Petitioner's evaluation was again signed by 

Petitioner and found to be "unacceptable." 

Resignation 

By memo dated April 27, 2023, a summary of Petitioner's probationary period was submitted 

to a Chief of Police. Based upon negative daily observation reports, evaluations and emails, the 

MTAPD concluded that Petitioner's performance did not meet expected levels. 

On May 8, 2023, Petitioner resigned. The letter states "IP"llease accept this letter as my formal 

notice of resignation from Probationary Police Officer with the MT A Police Department, effective 

today May 8, 2023 .'' 

About a week later, on May ·,s, 2023, Petitioner submitted a letter via email to the MTAPD 

Human Resources Department. Therein he asked to ';appeal the decision made to me to voluntary 

resign." In the letter Petitioner acknowledges that he was advised during an in-person meeting with 

Captain Pisanel!i and Lieutenant Echevarria that as he did not pass field-training he would be 

terminated or alternatively, he could resign and return in the future. Petitioner further acknowledges 

that as he wanted the opportunity to return, he voluntarily resigned. Hy email correspondence dated 

May 18, 2023, MTAPD advised Petitioner that he would not be reinstated as a probationary officer. 

158756/2023 VIJUNGCO, JUSTIN vs. METROPOLITAN TRANSPORTATION AUTHORITY 

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INDEX NO. 158756/2023 

RECEIVED NYSCEF: 03/27/2024 

Petitioner now moves pursuant to Article 78 to 1) annul and rescind his resignation as a 

probationary police officer with the MT A and 2) be reinstated as a probationary police officer. 

Specifically, the Petition alleges that "[t]he determination to force [Petitionerl to resign in lieu of being 

terminated was arbitrary, capricious, in bad faith, and an abuse of discretion. 

Discu.<tsion 

Pursuant to CPLR §78, judicial review by this Court is limited to whether there was a rational 

basis for an administrative agency's determination, whether the determination was arbitrary and 

capricious, or whether there was an abuse of discretion (see CPLR 78; Pell v. Bd of Ed. of Union Free 

S'ch. Dist. lv'o. l of Towns of Scarsdale & Mamaroneck, Westchester Cnty., 34 NY2d 222 [ 1974]; 

Gilman v NY. State Div. of Haus. & Community Renewal, 99 NY2d 144 [20021; Gaines v. New York 

State Div. of Haus. & Cmty. Renewal, 90 NY2d 545 [1997]). further, this Court must conduct the 

limited assessment without disturbing the agency's underlying factual determinations (see Heintz v. 

Brown, 80 NY2d 998 [ 1992]). 

Upon review of the submitted evidence, this Court first finds that Petitioner's resignation 

was voluntary and thus CPLR 78 is not applicable here (see Stefandel v. Sielaff, 176 AD2d 651 [1st 

Dept 1991 ]; see e.g. Garcia v. l'./ew York City Prob. Dep't, 208 AD2d 4 75 [l st Dept 1994]; Quaranta 

v. Jacobson, 250 AD2d 544 [1st Dept 19981). Here after Petitioner did not pass phase 2, phase 3, 

and a remedial phase, Respondent informed Petitioner that he would be terminated or in the 

alternative Petitioner could resign. When given this choice Petitioner then freely and voluntarily 

prepared and send his resignation letter to Respondent. Moreover, Petitioner by his own admission 

admits choosing to resign because he wanted the opportunity to return. 

In addition, even if Petitioner's resignation was not deemed voluntary and CPI ,R 78 applied, 

this Court nonetheless would find that Respondent showed a rational basis for rinding Petitioner's 

performance did not meet its standards and would further find the Petitioner's unsatisfactory 

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evaluations were not arbitrary, in bad faith or discriminatory. Here Respondent relied upon multiple 

reports and evaluations documenting Petitioner's progress and shortfalls during simulated field 

trainings and comparing it to other recruits to conclude that Petitioner's performance did not meet the 

expected levels for the necessary decision making and officer safety actions required of police work. 

Notably, after Petitioner was found unsuccessful in phases 2 and 3, he was given a third opportunity 

with a remedial field training phase which he also did not pass. Further, after every phase, Petitioner 

received and signed an evaluation with the reasons for his failure. Thus, Respondent's evaluations were 

not unfounded, irrational, arbitrary nor ethically discriminatory. Rather, Respondent's failing 

evaluations were based on important findings such as Petitioner discharging his weapon at 

inappropriate times and Respondent's genuine concern that Petitioner was not ready to make proper 

decisions regarding his safety as a pol ice officer if working alone and the safety of others. 

Accordingly, since Petitioner has not submitted any evidence for this Court to find or properly 

in fer that Petitioner's resignation was coerced, or that Respondent's evaluations ,vcrc irrational, it is 

hereby ORDERED that the Petition is denied and the proceeding is dismissed 

3106/2024 

DATE DENISE M DOMINGUEZ, J.S.C. 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFERIREASSIG N ~ NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

158756/2023 VIJUNGCO, JUSTIN vs. METROPOLITAN TRANSPORTATION AUTHORITY 

Motion No. 001 

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□ REFEREN 

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