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Wednesday, April 17, 2013

A CPLR Article 78 challenge to the validity of an employee’s resignation must be filed within four months of the date of the resignation


A CPLR Article 78 challenge to the validity of an employee’s resignation must be filed within four months of the date of the resignation
Reo v Village of Lawrence, 2013 NY Slip Op 02403, Appellate Division, Second Department

Daniel S. Reo was initially employed by the Village of Lawrence in the title Laborer.
According to the decision, in 2007 Reo resigned from this position to accept a position Sewer Plant Attendant with the Village and served in this title until 2009, when he resigned and sought reemployment in his former position, Laborer, with the Village.

As this would be a new Laborer position the Village was required to secure approval of that position from the Nassau County Civil Service Commission pursuant to Civil Service Law §22.*

As a condition of its approval of this new position the Commission asked the Village for its assurance that Reo “would only be performing duties appropriate for the laborer title.” The Village, however, decided to give those assurances to the Commission and terminated Roe’s employment effective January 7, 2011.**

Roe filed a petition pursuant to Article 78 of the CPLR challenging “the validity of his resignations in 2007 and 2009 and sought a court order directing the Village to reinstate him. Supreme Court denied the petition and dismissed the proceeding.

The Appellate Division said that Roe’s challenges to the validity of his resignations*** were barred by the four-month statute of limitations applicable to proceedings pursuant to CPLR Article 78. Further, said the court, “the termination of [Roe’s] employment in the new position of Laborer was not arbitrary and capricious or affected by an error of law."

* CSL §22, in pertinent part, provides that “[b]efore any new position in the service of a civil division shall be created … the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position …. “

** Although the decision is silent regarding Roe’s employment status between 2009 and January 2011, presumably he was appointed to “temporary position” of Laborer pending the Commission’s classification, approval and certification of the new position pursuant to CSL §22.


*** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c),which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_02403.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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