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December 04, 2018

The statute of limitations set out in Civil Service §75(4) does not control where the charges alleged would, if proved in a court, constitute a crime


The statute of limitations set out in Civil Service §75(4) does not control where the charges alleged would, if proved in a court, constitute a crime
Snowden v Village of Monticello, 2018 NY Slip Op 08226, Appellate Division, Third Department

In July 2016 the Village of Monticello's Building Inspector and Code Enforcement Officer [Petitioner], was served with a notice and statement of disciplinary charges pursuant to §75 of the Civil Service Law. Charge 1 alleged that Petitioner had "committ[ed] acts constituting crimes," related to "the unauthorized demolition of a building in October 2013, and the failure to properly abate the asbestos contained therein."Petitioner denied the allegations and contended that Charge 1 as untimely, citing Civil Service Law §75(4). 

In September 2016, following a hearing, the §75 Hearing Officer found that Charge 1 was not time-barred and was supported by substantial evidence. The Hearing Officer recommended the appointing authority impose termination of Petitioner from his position as the penalty. Adopting the findings and recommendation of the Hearing Officer, the appointing authority terminated Petitioner's employment with the Village.

Petitioner commenced an CPLR Article 78 proceeding seeking a court order annulling the appointing authority's determination. Supreme Court transferred the matter to the Appellate Division. 

Petitioner's primary contention on appeal was that Charge 1 should have been dismissed as untimely.

The Appellate Division noting that although §75(4) provides that "no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, observed that "this limitations period does not apply 'where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.'"

§75.1 Specification 1 of Charge 1 incorporated the allegations set out in Petitioner's related nine-count criminal indictment stemming from the same underlying conduct and events. Rejecting Petitioner's assertions to the contrary, the Appellate Division said that — by statutory directive — its inquiry was "limited to the allegations contained in the charges and specifications, without consideration of the proof or papers submitted in Petitioner's subsequent judicial proceeding (or at any ensuing disciplinary hearing) challenging the charges as untimely."

The court then explained that in count 8 of the criminal indictment Petitioner was alleged to have "knowingly, unlawfully and intentionally engage[d] persons to effect the unauthorized demolition of the [building], knowing that unabated asbestos was located therein or thereupon, causing the release of a substance hazardous to public health, safety or the environment, said substance being asbestos." If proven, said the court, these allegations would constitute the crime of endangering public health, safety or the environment in the fourth degree (see ECL 71-2711[3]."

Further, said the Appellate Division, count 9 alleges that Petitioner, "with regard to the demolition of the building, ... "engag[ed] persons neither certified nor qualified to abate the asbestos located therein, . . . knowing that asbestos was located therein, such demolition having been performed without asbestos abatement or any reasonable procedure to prevent the release of asbestos into the public air, . . . [and] having released a considerable amount of [asbestos] dust and debris into the air" in a populated area." These allegations, said the court, would, if proven at trial, constitute the crime of criminal nuisance in the second degree, citing Penal Law §240.45[1]. 

The Appellate Division further found that "the allegations against [Petitioner] as detailed in counts 5 through 7 would constitute, if established at trial, official misconduct," citing Penal Law §195.00[2].

Thus, said the court, the Hearing Officer properly found that the charge is not time-barred within the meaning of Civil Service Law §75[4].

As to Petitioner's argument that the appointing authority's determination should be annulled as unsupported by substantial evidence, the court said the appointing officer's determination to terminate Petitioner's employment pursuant to Civil Service Law §75 must be sustained if supported by substantial evidence. In conducting its review the Appellate Division, the court cited Matter of Longton v Village of Corinth, 57 AD3d 1273, leave to appeal denied 13 NY3d 709, and said "this Court may not substitute its own judgment for that of [appointing authority], even when evidence exists that could support a different result." Further, in the event there is conflicting evidence, the Appellate Division said it must defer to the Hearing Officer's credibility determinations.

Finding that there was substantial evidence in the record to support finding Petitioner guilty of the charges served upon him pursuant to §75 alleging that he had committed acts of misconduct that constituted crimes," the Appellate Division sustained the appointing authority's decision to impose the penalty of termination of Petitioner's employment.


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* The Appellate Division had previously issued a decision in the related criminal appeal (See People v Snowden, 160 AD3d 1054). 

The Village of Monticello decision is posted on the Internet at:


December 03, 2018

Court denies educator's motion to rescind a settlement agreement resolving a disciplinary action because the educator had a change of mind


Court denies educator's motion to rescind a settlement agreement resolving a disciplinary action because the educator had a change of mind
Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2018 NY Slip Op 08065, Appellate Division, First Department

Philip Nobile, a former tenured teacher employed by the New York City Department of Education [DOE], sought to rescind a stipulation with DOE settling disciplinary charges brought against him. The stipulation, signed by Nobile, his attorney, and DOE's attorney on October 7, 2016, provided that in exchange for DOE's agreement to discontinue the disciplinary hearing on the pending misconduct charges and to take no further disciplinary action against Nobile while Nobile agreed "to irrevocably retire from his employment with [DOE], effective close of business January 31, 2017."

Annexed to the stipulation was a letter signed by Nobile addressed to the District Superintendent stating, "I hereby irrevocably retire from [DOE], effective close of business January 31, 2017." The stipulation contained a signature line for the Superintendent, who signed it several days later. However before the Superintendent signed the stipulation Nobile notified DOE that he had changed his mind and wanted to rescind the stipulation. When DOE rejected Nobile's efforts to rescind the stipulation, Nobile sued. Supreme Court dismissed Nobile's the complaint and granted DOE's motion to dismiss the complaint, which actions were unanimously affirmed by the Appellate Division.

Although Nobile argued that the stipulation was unenforceable when he changed his mind because not all the parties had signed it, the Appellate Division held that "[t]his argument is unavailing." The court explained that the stipulation signed by Nobile and the attorney acting on behalf of DOE is binding under general contract principles, citing Hallock v State of New York, 64 NY2d 224, as Nobile failed to show that there was fraud, collusion, mistake or accident with respect to the execution of the settlement by Nobile, or that DOE's counsel lacked DOE's consent to enter into the stipulation. Nor, said the Appellate Division, was Nobile's parol evidence, offered to show that the parties did not intend to be bound by the stipulation until the Superintendent had signed it, admissible to add to or vary the terms of the writing.

As Nobile's agreement to retire was irrevocable, and he understood its consequences, his change of mind is not a cause sufficient to set aside his agreement to the stipulation  (see Barclay v Citibank, N.A., 136 AD3d 551, lv to appeal dismissed 27 NY3d 1077).

Nor was Nobile's parol evidence, offered to show that the parties did not intend to be bound by the stipulation until the Superintendent had signed it, admissible to add to or vary the terms of the writing.

A similar result applies with respect to an employee's attempting to withdraw his or her resignation.

Smith v Kunkel, 152 AD2d 893, concerned the issue of an employer’s refusal to permit an employee to withdraw a resignation following its delivery to the appropriate appointing authority.

Smith, a permanent state employee with the State Division of Equalization and Assessment, submitted his resignation for “personal reasons.” The resignation was dated August 21 and was to take effect the following September 3.

On August 29 Smith wrote the Division “seeking to withdraw and rescind” his resignation. Kunkel, the Division’s Administrative Officer, noting that the resignation had been “accepted on August 21,”* refused to approve Smith’s request to withdraw his resignation, citing 4 NYCRR 5.3(c) of the Rules for the Classified Service.**

Further, §5.3 of the Rules provides that if an effective date is specified in the resignation it takes effect on that date; if no date is specified it takes effect “upon delivery or filing in the office of the appointing authority.” 4 NYCRR 5.3 tracks Public Officers Law §31.2 as to the submission of resignations by public officers.

Under the Rules, however, the appointing authority may disregard the resignation in the event disciplinary charges have been filed, or are about to be filed, against the employee and proceed with the disciplinary action notwithstanding the receipt of the resignation.

Finally, the ruling in Silverman v McGuire, 51 NY2d 228, suggests that where the appointing authority makes the final determination with respect to approving the terms and conditions of a stipulation settling a disciplinary action it would be prudent for:

1. The employer’s representative to insist that any settlement of a disciplinary action include a statement to the effect that the settlement is subject to the approval of the appointing authority; and

2. The employee or the employee’s representative to insist on a provision spelling out what is to happen if the appointing officer does not agree to imposed the penalty set out in the settlement proposal.

* Except were otherwise provided by law, 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 [Hazelton v Connelly, 25 NYS2d 74]. At most, all that an appointing authority might do is to “acknowledge the receipt” of the employee’s resignation.

** 4 NYCRR 5.3(c) applies to employees of the State as the employer. Many local civil service commissions and personnel officers have adopted a similar rule.

The Nobile decision is posted on the Internet at:

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