Murphy, P. J. (dissenting). Petitioner Cohen began his service as a probationary correction captain on August 12, 1987. It was with the understanding that his performance would be carefully monitored during the 12-month probationary period. It is clear from the record that the petitioner in less than a year demonstrated that the judgment of the Correction Department, in returning him to the rank of officer, was amply supported.
Given petitioner’s performance and the strong basis for the many complaints and charges brought, heard and evaluated *294by superior officers, it is difficult to understand how the majority have accepted as credible every statement made by petitioner Cohen. Although the majority state that some charges have not been resolved, they would not only reinstate bim as a captain but would give him the salary of the captain retroactively.
The IAS court analyzed this record in finding that "petitioner has failed to carry the burden of showing that his termination was motivated by anti-Semitic prejudice rather than good faith dissatisfaction with his job performance. His allegations of anti-Semitism by a supervisor are entirely conclusory and unsubstantiated by specific incidents”.
Petitioner Cohen then waited two years to renew the petition on "newly discovered evidence”. The IAS court denied the application as "not timely” and a failure to show bad faith by the Department. The majority refers to the November 26, 1987 complaint. The full specifications are as follows: "On November 26, 1987, a breach of security was reported to you by Correction Officer Maria Irizarry, shield #8890, who was assigned as the 'A’ Officer in eight block. You failed to investigate the breach of security. In a written report you stated that you were never notified of the breach. However, in a written report, Officer Irizarry stated that she did in fact notify you and a log book entry was made to the effect that a breach of security existed by Correction Officer Dennis White, shield #9216. You subsequently admitted to Deputy Warden Daniel P. Meehan, during your Probationary Evaluation, that you were aware of the breach of security and failed to take action.”
The petitioner on January 19, 1988, filed an "employment discrimination” complaint as follows:
"Complainant alleges that since September of 1987, Assistant Deputy Warden Danny Trapp has harassed him verbally, and by requesting several reports from him. "The complainant also alleges that he has been made the subject of disciplinary action by Assistant Deputy Warden Trapp.” The corrective action the petitioner sought to the very serious charges of discrimination was that: "Complainant requests that he be transferred, and be given an apology.”
Petitioner’s complaint was followed by a letter from Congressman Schumer that every consideration be given Cohen’s request for transfer. It would seem that the "anti-Semitic *295behavior” and "ethnic harassment” charge would have been better spelled out in this Equal Employment Opportunity Commission complaint than in the CPLR article 78 petition brought after his demotion. The majority set forth and accept the allegations in the petition that "Trapp, a Black supervisor, subjected Cohen to ridicule and repeated ethnic harassment rooted in anti-Semitic behavior” and the "racial and ethnic tension existing for Cohen at his facility.” Aside from the bare allegations, the record is devoid of any factual basis for those conclusions. The majority should be curious as to the specifics, i.e., dates, times, those present, what was said, etc. That may account for the Department’s action when the charges were considered, which was that there was no basis for the complaint.
The March 4, 1988 event was another grievance filed against petitioner:
"On February 11, 1988, during the noon feeding, C.O. Jeanine Portillo #9225 was working at her assigned steady post on corridor control #2. During the performance of her duties, Officer Portillo was approached by Captain Irwin Cohen # 172. At this time, Captain Cohen asked C.O. Portillo 'What does a woman get out of sucking somebody off?’ "Captain Cohen has made several other statements on various other occasions, both before and after this incident. Although they were not as vulgar, they were all statements with sexual overtones. "On March 1, 1988 at approximately 3:15 PM, Officer Portillo was working overtime on corridor control #2. Captain Sanchez #779, and Captain Cohen #172 were standing at her post talking. Captain Sanchez commented on how C.O. Quinones’ #8417 stature on corridor control #1 looked very professional. Captain Cohen then stated that C.O. Quinones 'stands at attention on the rail because she came from Womens’ House, and liked to take it from behind’. He then stated that 'Officer Portillo stays close to the wall because she doesn’t like to take it from behind’. Captain Sanchez told Captain Cohen 'You shouldn’t say things like that.’ "Officer Portillo has never answered any of these statements made by Captain Cohen. She has hesitated in reporting these statements because she is on probation, and fears that since a Captain was involved, some retaliatory measures might be taken against her.” Upon investigation a partial summary at page 47 of the record states:
*296"Officer Portillo, Captains Cohen and Sanchez were interviewed by the Warden, concerning the allegations. Captain Cohen denies harassing Officer Portillo in any manner. "Captain Sanchez recalls hearing Captain Cohen make comments about Officer Portillo’s 'rear end’ although he doesn’t recall the exact words. "Based upon the information gathered during the investigation, it is concluded that there is probable cause to believe that Captain Cohen did make the statements, and as such, should be made the subject of formal disciplinary charges for violation of rule #3.15.250.” The charges were not prosecuted as such but were "administratively filed” when the petitioner was reduced in rank to officer and considered in that demotion from probationary status.
Renewal was properly denied since the application pursuant to CPLR 2221 was not based on newly discovered evidence which would have rendered a different result. What is referred to as newly discovered, was known to petitioner for two years and the record so indicates.
The majority find that there is no support for respondent’s contention "that his [petitioner’s] demotion was the result of unsatisfactory performance.” Petitioner was not demoted on the basis of his over-all performance evaluations, but for specific acts of misconduct. Petitioner relies on Exhibit F to show his performance was satisfactory. However, that report has two sections and the "Employees Institutional Disciplinary/Attendance and Performance Record” is overlooked by the petitioner. The evaluation is spelled out in that during the probationary period, petitioner had been the subject of disciplinary action, had not shown improvement, and should not be continued as a probationary employee. This part was signed by the commanding officer.
The burden is on the petitioner to present legal and competent evidence of a deprivation of petitioner’s rights or bad faith or other arbitrary action constituting an abuse of the Commissioner’s discretion (Haberman v Codd, 48 AD2d 505, 508). It is very similar to Matter of York v McGuire (99 AD2d 1023, 1024, affd 63 NY2d 760), where this court wrote: "No evidence has been submitted sufficient to raise a triable issue of fact (CPLR 7804, subd [h]) to support petitioner’s claim of bad faith, improper motive, arbitrariness or capriciousness. The fact that petitioner received some favorable evaluations *297as well as some unfavorable ones during [his] probationary period is not sufficient to raise a triable issue of fact as to the commissioner’s bad faith.” Petitioner here, has not sustained the burden required and the petition was properly dismissed.
A probationary employee who fails to properly inspect roll call formation, fails to inspect a breach of security, fails to follow a direct order from his supervisor, and on two occasions, sexually harasses a female officer, cannot complain that his administrator’s determination to demote him was made in bad faith.
There is no authority for this court to interfere with respondent’s administrative determination and the IAS court should be affirmed.
Ellerin, Wallach and Rubin, JJ., concur; Murphy, P. J., and Asch, J., dissent in an opinion by Murphy, P. J.
Judgment, Supreme Court, New York county, entered on or about May 10, 1991, reversed, on the law and the facts, without costs, the motion to renew granted, and, upon renewal, the petition granted, and respondent directed to reinstate petitioner to the rank of correction captain with back pay.