The Petitioner and the Town subsequently disputed whether Plaintiff had orally resigned his position with Town and ultimately the Town sent a letter to Plaintiff reporting that "it had accepted [Plaintiff's resignation]"* effective the December 31. Although Plaintiff sought to retain his position with the Town, the Town refused his request under color of Plaintiff's purported oral resignation.
Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing the Town to reinstate him to his position with back pay, and benefits, contending, among other things, that the Town's action terminating from his position was arbitrary and capricious and in violation of Civil Service Law §75-b.
Supreme Court dismissed Plaintiff claim with respect to the alleged violation of Civil Service Law §75-b, but otherwise granted Plaintiff's petition and directed the Town to reinstate Petitioner to his position with the Town with back pay and benefits. The Town appealed the Supreme Court's ruling.
The Appellate Division rejected the Town's appeal explaining that it was not inconsistent for Supreme Court to dismiss Plaintiff's claim with respect to the alleged violation of Civil Service Law §75-b and then grant him relief pursuant to CPLR Article 78, noting that notwithstanding the Town's argument to the contrary, Plaintiff's to elective office in another jurisdiction did not constitute an automatic resignation of his position as laborer with the Town. Citing People ex rel. Ryan v Green, 58 NY 304, the Appellate Division opined that "[P]hysical impossibility is not the incompatibility of the common law, which existing, one office is ipso factovacated by accepting another." Based upon the record before it, the Appellate Division opined that the two positions in question were not per se incompatible.
Addressing the Town's contention that Supreme Court's granting Plaintiff's petition was erroneous in view of Plaintiff's alleged oral resignation, the court said that the Town's argument was without merit inasmuch as the Town's employee handbook requires that an employee's resignation be in writing.**
The Appellate Division also rejected the Town's argument that Plaintiff was not entitled to back pay and benefits. Rather, said the court, CPLR Article 78 allows for damages incidental to "the primary relief sought by the [Plaintiff], i.e., reinstatement to employment and such damages may include full back pay and benefits retroactive to the date of termination."
* Although it is sometimes reported that "a resignation has been accepted," all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74) unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a controlling collective bargaining agreement. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district and such superintendent endorses thereon his approval and files the same with the district clerk [emphasis supplied]. See, also, §2110.3 of the Education Law.
** The Town is located in Seneca County and the County's Civil Service Rule XX, provides, in pertinent part, as follows: 1. RESIGNATION IN WRITING: Except as otherwise provided herein, every resignation shall be in writing.
The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05312.htm