An individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations
Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 04116, Appellate Division, First Department
Supreme Court granted Gaetano Vaccaro’s Article 78 petition seeking [1] the annulment of the Board of Education of the City School District of the City of New York’s [Board of Education] determination discontinuing Vaccaro’s probationary employment and [2] a declaration that Vaccaro was a tenured teacher at the time his employment as a probationary employment was terminated. Supreme Court also denied the Board of Education’s cross motion to dismiss Vaccaro’s petition.
The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and dismissed the Article 78 proceeding brought by Vaccaro.
Citing Springer v Board of Education of the City School District of the City of New York, 121 AD3d 473, affirmed 27 NY3d 102*, the Appellate Division explained that Vaccaro had not complied with the provisions set out in New York City Department of Education's Chancellor's Regulations C-205(28) and C-205(29), which provisions govern with respect to the withdrawal of a resignation by an individual and the restoration of the tenure previously enjoyed by that individual.
As noted in NYPPL’s summary of the Springer decision, while Springer’s position was in the Unclassified Service,** in the event "a permanent employee in a position in the Classified Service*** of the State as the employer resigns from his or her position and subsequently wishes to withdraw his or her resignation he or she must obtain the approval of the appointing authority to do so. Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provide that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.
“Further, 4 NYCRR 5.4, Reinstatement following resignation provides, in pertinent part, that a former permanent State employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant. This rule, then further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.
“Many local Civil Service Commissions have adopted rules similar to 4 NYCRR 5.4.”
* The Springer decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_02553.htm
** See, generally, Civil Service Law §35.
*** See, generally, Civil Service Law §§40-45
The Vaccaro decision is posted on the Internet at: