Alston v. City of New York , 703 N.Y.S.2d 186 ( 2000 )

—Order, Supreme Court, New York County (Barry Cozier, J.), entered on or about September 23, 1998, which denied petitioner’s CPLR article 78 application to compel respondent City to promote him from caseworker to supervisor in its Human Resources Administration, Administration for Children’s Services (ACS), and directed entry of judgment dismissing the petition, unanimously affirmed, without costs.

Petitioner’s disputed assertion that he was denied the promotion because of his prior conviction for Federal mail fraud, in violation of Executive Law § 296 (15), is speculative, given the evidence of his mediocre performance as a caseworker and of his prior attempt to deceive ACS by seeking a medical leave when he had actually taken a job with another City agency (cf., Matter of Johnson v Katz, 68 NY2d 649). In any event, the mail fraud conviction, which involved petitioner’s submission of false car service vouchers in connection with his employment as a caseworker, raises legitimate issues about his fitness for the supervisory position (Correction Law § 752; see, Matter of Schmidt & Sons v New York State Liq. Auth., 52 NY2d 751). Concur — Sullivan, P. J., Rosenberger, Mazzarelli and Andrias, JJ.