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October 26, 2022

Procedural errors and omissions result dismissial of the action without addressing the merit of the complaint

Supreme Court denied Plaintiff's amended petition seeking a court order annulling her former employer's denial of her request to withdraw her resignation and dismissed the proceeding brought pursuant to CPLR Article 78. Plaintiff appealed but the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division explained Plaintiff had attempted to file an "amended" Article 78 petition two years after filing her initial petition without first obtaining a "leave to amend" was improper.

Further, said the court, Plaintiff's was petition untimely, as she "failed to file it within four months of the employer's decision to deny her request to withdraw her resignation.

Significantly, the Appellate Division noted the Plaintiff's claim that her initial filing tolled the statute of limitations was unavailing "because the time to commence an Article 78 proceeding is not extended by her eventual pursuit of administrative remedies," citing Matter of Mendez v New York City Dept. of Educ., 128 AD3d 584.

Noting the decision in Sumner v Hogan, 73 AD3d 618, the Appellate Division opined that Plaintiff's petition also failed because she did not exhaust her administrative remedies prior to initiating her Article 78 proceeding as required by the relevant collective bargaining agreement. 

Click HEREto access the text of the Appellate Division's decision.

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com