Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress
2014 NY Slip Op 01905, Appellate Division, Fourth Department

Petitioner, a former police officer, filed a petition pursuant to CPLR Article 78 seeking to compel his former employer to reinstate him to his former position with back pay, alleging that although he had submitted his resignation, it was obtained under duress -- i.e., threats of criminal prosecution were made by City officials against him.* Thus, Petitioner argued, the resignation was invalid.

Supreme Court dismissed  Petitioner’s complaint on the ground that it was untimely, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that "Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee's demand for reinstatement is refused." The court then observed that such a “demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [Petitioner] becomes aware of the facts which give rise to his [or her] right of relief," noting that the four-month limitations period of CPLR article 78 proceedings has been "treat[ed] . . . as a measure of permissible delay in the making of the demand."

In this instance, said the court, Petitioner's right to demand reinstatement to his position arose, at the latest, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury.

Petitioner, however, did not demand reinstatement to his position until approximately nine months later, well over the four-month guideline. The Appellate Division ruled that Supreme Court "it was [well] within [its] discretion to determine that Petitioner unreasonably delayed in making the demand."

* In Rychlick v Coughlin, 63 NY2d 643, the court said that the threat to file formal disciplinary charges if the employee did not resign does not constitute duress as it is not duress to threaten to do what one has the legal right to do.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01905.htm

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