### Vi jungco 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. DENISEM 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.
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DECISION AND ORDER ON MOTION

The following e-filed documents, listed by NYSCEF documentnumber (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) Forthe reasonsthatfollow, this Petition pursuantto CPLRArt. 78, seekingto annul and rescind Petitioner JUSTIN VIJUNGCO's voluntary resignation as a probationary police officer with Respondent METROPOLITAN TRANSPORTATION AUTIIORITY (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 ofhis probationary period, he was unsuccessful in Phase 2 offield 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 otliecrfoundthat Petitionerhad "difficultyunderstandingthe appropriate useofforce

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in several scenarios and was apparently terrifiedto speakto 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 meetperformance expectations" and it \Vas recommended that "the recruit be failed for this segment oftraining." The evaluation further noted that while Petitioner showed signs ofprogress in some aspects, and hadthe driveto learn, he "appearedtohave difficulty retaining information givento 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 ofhis duties, some ofwhich 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 ApriI 1, 2023, noted again that Petitioner's performance was ''unacceptable'', and "generally did not meetperformance expectations" and itwas recommended that "the recruit be failed for this segmentoftraining." It was specifica!ly notedthat while Petitioner appeared professional and eagerto learn, he ;'needs improvement on safety tactics and reportwriting" and to "familiarizehimself with the daily functions ofa police officerand improve social skills when interacting with the public." A separate end ofPhase Evaluation Summary, dated April I, 2023, was prepared and again signed by Petitioner, recommendingthat atthis point, Petitionerreceive 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 ofdecision makingthat police workrequires."

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Followingthe Remedial Phase,a 

### ReviewEvaluation SummarydatedApril 22,2023 and signed by Petitioner, noted that Petitionerhad improved in the administrative functions ofbecoming a police officerand 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

## "fa]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 MTA Police Department." Petitioner's evaluation was again signed by Petitioner and found to be "unacceptable." 

### Resignation By memo dated April 27, 2023, a summary ofPetitioner's probationary period was submitted to a Chief of Police. Based upon negative daily observation reports, evaluations and emails, the MTAPD concludedthat Petitioner's performance did not meet expected levels. On May 8, 2023, Petitionerresigned. The letterstates "IP"llease accept this letter as my formal notice ofresignation from Probationary Police Officer with the 

### MTA 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 Petitionerthathe would not be reinstated as a probationary officer.

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Petitioner now moves pursuant to Article 78 to 1) annul and rescind his resignation as a probationary police officer with the MTA and 2) be reinstated as a probationary police officer. Specifically, the Petition allegesthat "[t]hedeterminationtoforce [Petitionerl to resign in lieu ofbeing terminated was arbitrary, capricious, in bad faith, and an abuse ofdiscretion. 

### Discu.<tsion Pursuant to CPLR §78,judicial review

### by this Court is limited to whetherthere was a rational basis for an administrative agency's determination, whether the determination was arbitrary and capricious, orwhetherthere was an abuse ofdiscretion 

### (see CPLR 78; Pellv. 

### Bd of Ed. ofUnion Free S'ch. Dist. lv'o. l 

### ofTowns ofScarsdale & 

### Mamaroneck, Westchester Cnty., 34 NY2d 222 [1974]; 

### Gilman v

### NY. State Div. of Haus. & 

### CommunityRenewal, 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 ofthe submitted evidence, this Courtfirst finds that Petitioner's resignation
was voluntary and thus CPLR78 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 475 [lst Dept 1994]; 

### Quaranta
v. Jacobson, 250AD2d 544 [1st Dept 19981). Here after Petitioner did not pass phase 2, phase 3, and a remedial phase, Respondent informed Petitionerthat he would be terminated or in the alternative Petitioner couldresign. When given this choice Petitionerthen 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 

### ifPetitioner'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 itto otherrecruits to conclude that Petitioner's performancedid not meet the expected levels for the necessary decision making and officer safety actions required ofpolice 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 receivedand signedan evaluationwiththereasonsforhis failure. Thus, Respondent's evaluationswere 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 police officer ifworking alone and the safety ofothers. Accordingly, since Petitionerhas not submitted any evidence for this Courtto find orproperly infer that Petitioner's resignation was coerced, or that Respondent's evaluations ,vcrc irrational, it is hereby ORDEREDthatthe 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 TRANSFERIREASSIGN

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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