A CPLR Article 78 challenge to the validity of an employee’s resignation must be filed within four months of the date of the resignation

A CPLR Article 78 challenge to the validity of an employee’s resignation must be filed within four months of the date of the resignation

Reo v Village of Lawrence, 2013 NY Slip Op 02403, Appellate Division, Second Department

Daniel S. Reo was initially employed by the Village of Lawrence in the title Laborer.

According to the decision, in 2007 Reo resigned from this position to accept a position Sewer Plant Attendant with the Village and served in this title until 2009, when he resigned and sought reemployment in his former position, Laborer, with the Village.

As this would be a new Laborer position the Village was required to secure approval of that position from the Nassau County Civil Service Commission pursuant to Civil Service Law §22.*

As a condition of its approval of this new position the Commission asked the Village for its assurance that Reo “would only be performing duties appropriate for the laborer title.” The Village, however, decided to give those assurances to the Commission and terminated Roe’s employment effective January 7, 2011.**

Roe filed a petition pursuant to Article 78 of the CPLR challenging “the validity of his resignations in 2007 and 2009 and sought a court order directing the Village to reinstate him. Supreme Court denied the petition and dismissed the proceeding.

The Appellate Division said that Roe’s challenges to the validity of his resignations*** were barred by the four-month statute of limitations applicable to proceedings pursuant to CPLR Article 78. Further, said the court, “the termination of [Roe’s] employment in the new position of Laborer was not arbitrary and capricious or affected by an error of law."

* CSL §22, in pertinent part, provides that “[b]efore any new position in the service of a civil division shall be created … the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position …. “

** Although the decision is silent regarding Roe’s employment status between 2009 and January 2011, presumably he was appointed to “temporary position” of Laborer pending the Commission’s classification, approval and certification of the new position pursuant to CSL §22.

*** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c),which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides 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.” Many local civil service commissions and personnel officers have adopted a similar rule. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_02403.htm

Courts will reject an untimely demand to submit a matter to arbitration

Courts will reject an untimely demand to submit a matter to arbitration

Town of Orangetown v Rockland County Policemen's Benevolent Assn., 2013 NY Slip Op 02408, Appellate Division, Second Department

In this CPLR Article 75 the Town of Orangetown petitioned Supreme Court seeking an order to permanently stay an arbitration demanded by the Rockland County Policemen’s Benevolent Association and the Town of Orangetown Policemen's Benevolent Association.

Both Associations, on the other hand, asked the court to issue an order to “compel arbitration.”

Although the Town contended that demand for arbitration was untimely, Supreme Court granted the Associations’ petition. The Appellate Division, however, revered the lower court’s ruling, vacated the order, and granting the Town’s petition to permanently stay the arbitration.

The Appellate Division explained that under New York statutory and case law, a court may address three threshold questions on a motion to compel or to stay arbitration:

1. Whether the parties made a valid agreement to arbitrate;

2. If so, whether the agreement has been complied with; and

3. Whether the claim sought to be arbitrated would be time-barred if it were asserted in State court.

Finding that the grievance the Association sought to be arbitrated was time-barred under the applicable 18-month statute of limitations, the Appellate Division held that Supreme Court erred in denying the Town’s petition to permanently stay arbitration and granting the Association’s cross motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02408.htm

A board may not appoint one of its own members to a vacant position under it jurisdiction

A board may not appoint one of its own members to a vacant position under it jurisdiction
Fishman v Board of Educ. of S. Country Cent. Sch. Dist, 2013 NY Slip Op 02394, Appellate Division, Second Department

Roberta Fishman filed a CPLR Article 78 petition challenged a resolution of the Board of Education of the South Country Central School District appointing Gregory C. Miglino, Jr. to the position of Building Services Administrator Miglino was a then member of the Board.

Supreme Court’s ruling annulling the Board’s resolution appointing Miglino to the position. In the words of Supreme Court Justice Paul J. Baisley, "… the Court determines and declares that the Board Action in creating the position … and appointing its member and president Gregory C. Miglino, Jr. to the position was arbitrary and capricious … and accordingly is null and void.”

Miglino appealed the decision but the Appellate Division affirmed Justice Baisley's decision. The Appellate Division held that Supreme Court had correctly determined that the action of the Board in appointing one of its present members to the position of Building Services Administrator was “illegal and improper,” citing Wood v Town of Whitehall, 120 Misc 124, affd206 App Div 786.*

In Whitehall the court ruled that a board may not appoint one of its members to a position under its jurisdiction as such an action is contrary to public policy and the general welfare. Further, the Attorney General has indicated that the recusal of the member of the board to be appointed does not remedy the conflict of interests (1995 Informal Opinions of the Attorney General1074).

The Association of Towns has observed that “in the absence of a state law, local law or session law to the contrary,” a board is bound by the Whitehall doctrine.

The Whitehall decision is posted on the Internet at:

* http://decisions.courts.state.ny.us/fcas/fcas_docs/2012FEB/51002913120103SCIV.pdf

The Fishman decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02394.htm