The Petitioner in this Article 78 action sought to have Supreme Court annul a determination of City of New York Civil Service Commission [Commission] affirming the decision of the New York City Administration for Children's Services [ACS] terminating Petitioner's employment for misconduct and incompetence. In addition, Petitioner attempted to have the court to annul the Commission's affirming a ruling by the New York City Department of Citywide Administrative Services [Citywide] disqualifying Petitioner from employment with the New York City Taxi and Limousine Commission based on ACS's findings. Supreme Court dismissed the proceeding, which resolution of the matter the Appellate unanimously affirmed.
The Appellate Division observed that Petitioner had submitted both a "conditional resignation" and "a handwritten resignation letter" while disciplinary charges were pending against him. ACS, however, elected to disregard these resignations and continue to prosecute the charges against Petitioner. Citing 4 NYCRR 5.3[b], the court found that the appointing authority could, and did, ignore Petitioner's consistent with the provisions of the rule which, in pertinent party, provides "... when 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* termination shall be recorded as a dismissal rather than as a resignation."
Further, said the court, "Petitioner failed to establish that respondents acted in excess of their jurisdiction, citing Civil Service Law §76, . The court explained that Petitioner, a probationary employee, could be dismissed "for almost any reason, or no reason at all," failed to allege facts that would establish that he was dismissed in bad faith or for an improper or impermissible reason.
* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”
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