Rescinding a resignation
Otero v Safir, 258 AD2d 297
After being served with disciplinary charges involving allegations that subjected him to criminal charges, New York City police officer Louis Otero submitted his resignation from the force rather than testify at a disciplinary hearing. Later Otero asked a New York State Supreme Court justice to direct the Department to rescind his resignation. When the Supreme Court dismissed his petition, he appealed.
The Appellate Division denied Otero’s appeal. It said that Otero’s resignation was “strategically motivated and not the result of fraud, overreaching or other misconduct on [Department’s] part, was not improperly obtained and, accordingly, may not be judicially countermanded,” citing Cacchioli v Hoberman, 31 NY2d 287.
This case illustrates the general principle that an individual’s request to withdraw a resignation or to have it rescinded is subject to the discretionary approval of the appointing authority. Generally courts will intervene only in situations where the former employee proves that the resignation was the result of fraud or coercion.
Courts will also direct the rescinding of a resignation for certain types of “mistakes.”
For example, a teacher was told that she was a probationer and would not be recommended for tenure. She submitted her resignation solely to avoid having her personal record indicate that she was terminated for failure to satisfactorily complete her probationary period. It was later determined that the teacher had completed her probationary period and had acquired tenure prior to her submitting the resignation.
In Gould v Sewanhaka CSD, 81 NY2d 446, the Court of Appeals approved the rescinding of Gould’s resignation on the theory that the teacher had submitted her resignation under the mistaken belief that she was a probationer.
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com