January 8, 2018

Withdrawing a resignation delivered to an appointing authority


Withdrawing a resignation delivered to an appointing authority
Buffolino v New York City Dept. of Educ., 2017 NY Slip Op 09231, Appellate Division, First Department

The New York City Department of Education [DOE] accepted* a letter of resignation submitted by Christine Buffolino dated December 2, 2015 and allegedly to take effect December 14, 2015. Buffolino subsequently denied having sent the letter of resignation to the Superintendent of the school [sic] and on December 17 and 18, 2015, sought to withdraw and, or, rescind the letter.

DOE terminated Buffolino from her teaching position effective December 14, 2015 and she initiated a "hybrid proceeding" pursuant to CPLR Article 78 and 42 USC §1983 in Supreme Court seeking a court order annulling DOE action. Supreme Court dismissed the Article 78 petition and Buffolino appealed.  

The Appellate Division modified Supreme Court's ruling "on the law" with respect to the Article 78 action but vacated Supreme Court's dismissal of Buffolino's 42 USC §1983 claim and converted the proceeding into a "plenary action."

With respect to the §1983 claim, the court held that "[i]n the absence of a motion to dismiss the 42 USC §1983 claim, conversion of this proceeding to a plenary action is warranted."

Turning to the Article 78 action, the Appellate Division, citing Matter of Gil v Department of Educ. of the City of N.Y., 146 AD3d 688, explained that the Article 78 petition was properly dismissed by Supreme Court as premature, as it was brought prior to the conclusion of the grievance procedure set forth in the collective bargaining agreement entered into between Buffolino's union and her employer

* Some comments and observations concerning an individual's effort to withdraw a resignation:

Except as otherwise provided by law, rule or regulation, or by the terms of a collective bargaining agreement, a resignation need only be delivered to the appointing authority, or the appointing authority's designee, prior to receipt of a notice that the individual has rescinded or withdrawn it to be effective. Acceptance of the resignation is not required for it to be operative [Hazelton v Connelly, 25 NYS2d 74]. 

Courts, however, typically rule that the receipt of a withdrawal of a resignation by the appointing authority [or designee] before the resignation itself is delivered effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

An example of a situation where acceptance of a resignation is mandated by statute: §2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

In contrast to an individual's efforts to withdraw his or her resignation, an appointing authority may elect to ignore a lawfully delivered resignation. 

For example, 4 NYCRR 5.3(b), which applies to employees of the State in the classified service as the employer,  provides that in the event “… charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation" [emphasis supplied]. Many political subdivisions of the State have adopted a similar provision.

Presumably an appointing authority could elect to disregard an employee's “retirement” from his or her position under similar circumstances [See Mari v Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61].

Another possible situation that may triggered in a "resignation situation" concerns §1133.1 of the State Education Law. §1133.1 provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made."

The decision is posted on the Internet at:


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