The First Department upheld the termination of a probationary police officer, in Matter of Duncan v. Kelly, which was decided on August 9, 2007. The court rejected the argument that the firing was improperly based on pre-hiring conduct, over which the Department of Citywide Administrative Services would have exclusive authority. Instead, the court said that petitioner's post-hiring conduct provided ample basis for his termination, inasmuch as he had made false and misleading statements to Internal Affairs concerning a crime in which he was allegedly involved prior to his employment.

The court noted that the investigation absolved the ex-officer of two other crimes, and that substantial deference must be given to the investigatory findings, which were reviewed at a number of levels, up to and including the Police Commissioner.

There was a lengthy and virogous dissent which argued that the department had fabricated a post-hiring reason for termination which was based on pre-hiring conduct by "summarily deeming" the ex-officer's statements to Internal Affairs to be lies.