Workers' Compensation Board's factual conclusion that claimant made willful misrepresentations to obtain benefits sustained

Matter of Mikheil (Commissioner of Labor)

2022 NY Slip Op 04075

Decided on June 23, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 23, 2022

533667

[*1]In the Matter of the Claim of Emad Mikheil, Appellant. Commissioner of Labor, Respondent.

Calendar Date:June 1, 2022
Before:Clark, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

Law Office of Thomas V. Purpi, PC, New York City (Thomas V. Purpi of counsel), for appellant.

Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.

 

Reynolds Fitzgerald, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 11, 2021, which ruled, among other things, that claimant was ineligible to receive pandemic unemployment assistance.

Claimant, who lived in New York City, traveled to Egypt on February 18, 2020 to attend to a family matter, intending to return at the end of March 2020. It is undisputed that the government of Egypt imposed a travel ban on March 16, 2020 due to the COVID-19 pandemic, and closed the country's airports until July 1, 2020; only two flights left the country during the ban, in early April 2020, and claimant was unable to return to the United States until around July 3, 2020. On March 26, 2020, claimant attempted to use his cellphone from Egypt to file a claim for unemployment insurance benefits, but that effort was blocked because of his location; he then applied for benefits by remotely accessing his home computer in the United States, claiming that he was unemployed due to lack of work. The next day, the Department of Labor sent claimant an Out of Country Questionnaire because he was certifying for benefits from Egypt; he completed and returned the forms, disclosing his reasons for being in Egypt and his inability to return home due to the airport closure. His claim for benefits was denied initially on the ground that he was in Egypt and not ready, willing and able to work or to comply with reporting requirements. As he was ineligible for state benefits, the Department sent him an application for pandemic unemployment insurance benefits under the Coronavirus Aid, Relief and Economic Security Act of 2020 (the CARES Act), enacted on March 27, 2020, which created a new, temporary joint state-federal program called pandemic unemployment assistance (hereinafter PUA) to provide relief to certain workers affected by the COVID-19 pandemic (see 15 USC § 9021, as added by Pub L 116-136, 134 Stat 313). Claimant completed and submitted the PUA application. Claimant thereafter certified for benefits by telephone for the week ending June 14, 2020, attesting that he was ready, willing and able to begin working immediately. Claimant received $600 in federal pandemic unemployment compensation (hereinafter FPUC) (see 15 USC § 9023) and $504 in PUA benefits (see 15 USC § 9021).

By initial determinations, the Department held that claimant was ineligible for state unemployment insurance benefits effective March 16, 2020 through June 28, 2020, because he was not available for employment and could not and did not properly certify for benefits from Egypt ^[FN1](see Labor Law §§ 591 [2]; 596 [4]). Claimant's right to receive future benefits was reduced by eight days and a monetary penalty of $100 was imposed because he made willful misrepresentations to obtain benefits (see Labor Law § 594), and he was charged with recoverable overpayments of $504 in PUA benefits and $600 in FPUC benefits (see 15 USC §§ 9021 [h]; 9023 [f] [2]; 20 CFR 625.14 [a]). Following a hearing, an [*2]Administrative Law Judge sustained the determinations and, on appeal, the Unemployment Insurance Appeal Board affirmed. Claimant appeals.

We affirm. To receive state unemployment insurance benefits, claimants must be "ready, willing and able to work" in their field (Labor Law § 591 [2]), which presents a question of fact for the Board to resolve (see Matter of Ormanian [Montauk Bus Serv., Inc.—Commissioner of Labor], 167 AD3d 1183, 1184 [2018], lv dismissed 32 NY3d 1221 [2019]). Claimant traveled to Egypt for personal reasons unrelated to employment, where he remained until the airports reopened in July 2020. The unemployment insurance handbook made available to claimant online when he applied for benefits advised that he was responsible to read it, and apprised him that he is not considered to be available for employment unless he can accept work immediately; the handbook directed claimants not to certify for benefits from outside of the United States, its territories or Canada because they may not claim benefits for any period of time that they are outside of those geographic parameters, and that doing so is fraud. Claimant is charged with constructive knowledge of the handbook notices regarding the availability requirement when certifying for benefits from abroad. Although claimant testified that he was prepared to take a job immediately but for the airport closure, this at most presented a factual question that the Board resolved against him and, moreover, substantial evidence supports the Board's determination that, while in Egypt, he was not available for immediate employment in the United States (see Matter of Inatomi [Commissioner of Labor], 116 AD3d 1332, 1333 [2014]; Matter of Kossarska-Goetz [Commissioner of Labor], 111 AD3d 1240, 1240-1241 [2013]).

Claimant contends that he was nonetheless entitled to PUA benefits and, therefore, the Board improperly ordered him to repay those benefits. As relevant here, PUA benefits are available to "covered individual[s]," defined as those who are not eligible for any other unemployment benefits, who certify to two prerequisites: that they are "otherwise able to work and available for work within the meaning of applicable State law" but are "unemployed . . . or unable . . . to work" because of one or more statutorily enumerated factors (15 USC § 9021 [a] [3] [A] [ii] [I] [emphasis added]; [b]; see Matter of Mangiero [Commissioner of Labor], 197 AD3d 1458, 1459 [2021], lv denied 38 NY3d 901 [2022]). Although claimant was ineligible for any other benefits, the Board correctly concluded that he was not available for work within the meaning of State law, i.e. Labor Law § 591 (2), as he was outside of the country and, thus, he did not satisfy the first prerequisite for entitlement to PUA benefits (see 15 USC § 9021 [a] [3] [A] [ii] [I]). Claimant's further argument that he qualified for PUA as he satisfied the second prerequisite, in that he was "unable to reach the place of employment because [*3]of a quarantine imposed as a direct result of the COVID-19" pandemic, is unavailing (15 USC § 9021 [a] [3] [A] [ii] [I] [ee]), as there was no proof that he was exposed to COVID-19 and in quarantine in Egypt. Contrary to claimant's argument, the Board rationally interpreted the governing statutory criteria for PUA benefits and its decision that he was not entitled to such benefits is supported by substantial evidence. To that end, the Board's interpretation is consistent with the guidance provided by the US Department of Labor, the federal agency tasked with providing operating instructions for the joint state-federal pandemic unemployment insurance program (see 15 USC § 9032 [b]), of which we take judicial notice (see United States Department of Labor, Employment and Training Administration, Unemployment Insurance Program Letter No. 16-20, at I-3, I-5, I-9 [https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20.pdf]). Because claimant was not entitled to PUA or FPUC, the Board properly assessed overpayments of benefits paid (see 15 USC §§ 9021 [h]; 9023 [b] [1]; [f] [2]; 20 CFR 625.11, 625.14 [a]; Matter of Frederick [Commissioner of Labor], 197 AD3d 1456, 1457-1458 [2021]). Moreover, under these circumstances, we find no reason to disturb the Board's factual conclusion that claimant made willful misrepresentations to obtain benefits, or the resulting imposition of recoverable overpayments, forfeiture and penalties (see Labor Law §§ 594, 597 [4]; Matter of Falso [Commissioner of Labor], 201 AD3d 1285, 1285-1286 [2022], lv denied ___ NY3d ___ [June 16, 2022]; Matter of Corso [Commissioner of Labor], 144 AD3d 1367, 1368 [2016]). We have examined claimant's remaining contentions and find that none has merit.

Clark, J.P., Pritzker, Ceresia and Fisher, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Footnotes

Footnote 1: The parties agree that Egypt is not a signatory to any Interstate Benefits Payment Plan, which provides a method for persons entitled to unemployment compensation in one state who are absent from that state to receive benefits from another signatory state or territory where they reside, which acts as an agent for the payment of benefits (see 26 USC § 3304 [a] [9] [A]; https://oui.doleta.gov/unemploy/pdf/istate_agree_bene_ payment.pdf). As such, substantial evidence supports the Board's conclusion that claimant did not and could not comply with the reporting requirements from Egypt (see Labor Law § 596; 12 NYCRR 473.1, 473.2, 473.3; Matter of Inatomi [Commissioner of Labor], 116 AD3d 1332, 1333 [2014]).

Absent medical evidence establishing a recognizable link between claimant's injuries and repetitive movements associated with her work activities constitutes substantial evidence that claimant did not establish a causally-related occupational disease

 

Matter of Sanchez v New York City Tr. Auth.

2022 NY Slip Op 04078

Decided on June 23, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 23, 2022

534023

[*1]In the Matter of the Claim of Brenda Sanchez, Appellant,

v

New York City Transit Authority, Respondent. Workers' Compensation Board, Respondent.

Calendar Date:May 26, 2022
Before:Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Schotter Millican, LLP, New York City (Geoffrey Schotter of counsel), for appellant.

Jones Jones LLC, New York City (David Secemski of counsel), for New York City Transit Authority, respondent.

 

Ceresia, J.

Appeal from a decision of the Workers' Compensation Board, filed February 18, 2021, which ruled, among other things, that claimant did not sustain a causally-related occupational disease and denied her claim for workers' compensation benefits.

In June 2016, claimant, a station agent for over 29 years, applied for workers' compensation benefits, citing repetitive stress injuries to her neck, back, left shoulder, left hip and left hand incurred as a result of her employment. The employer and its workers' compensation carrier controverted the claim. Following hearings at which deposition testimony of the parties' medical providers was submitted and claimant testified, the Workers' Compensation Law Judge disallowed the claim, finding that it was time-barred, which decision the Workers' Compensation Board, among other things, affirmed. Claimant sought judicial review, resulting in this Court reversing the Board's decision and remitting the matter for further proceedings (187 AD3d 1273 [2020]).

Upon remittal, the full Board adopted this Court's decision and referred the matter for further proceedings to the same Board panel that previously reviewed the claim. In a February 18, 2021 decision, the Board, discrediting the opinion of claimant's treating physician, found that claimant's alleged injuries were not causally related to her employment, that she did not sustain an occupational disease and disallowed the claim. Claimant appeals.

We affirm. "To be entitled to workers' compensation benefits for an occupational disease, a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence" (Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d 1236, 1237 [2019] [internal quotation marks and citations omitted]; see Matter of Barker v New York City Police Dept., 176 AD3d 1271, 1272 [2019], lv denied 35 NY3d 902 [2020]). "To this end, a medical opinion on the issue of causation must signify a probability as to the underlying cause of the claimant's injury which is supported by a rational basis" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920, 922 [2008] [internal quotation marks and citations omitted]; see Matter of Lichten v New York City Tr. Auth., 132 AD3d 1219, 1219-1220 [2015]). "Importantly, the Board's decision as to whether to classify a certain medical condition as an occupational disease is a factual determination that will not be disturbed if supported by substantial evidence" (Matter of Patalan v PAL Envtl., 202 AD3d 1252, 1253 [2022] [internal quotation marks and citations omitted]; see Matter of Molina v Delta Airlines Inc., 201 AD3d 1193, 1194 [2022]).

A review of the record supports the Board's determination that claimant did not establish a sufficient causally-related link between claimant's injuries and a distinctive feature of her employment (see Matter of Patalan v PAL Envtl., 202 AD3d [*2]at 1253). Stephen Roberts, claimant's treating physician, diagnosed claimant with injuries to her neck, back, left shoulder, left hip and left hand, which he opined were caused by "repetitive activity over a period of time working as a station agent [and d]oing the various tasks that required lifting bags of coins." Roberts testified that, "It seemed a lot of her injury was due to lifting heavy objects[,] and bags of coins [were] a big problem. Heavy bags of coins." In that regard, claimant testified that her job duties initially involved unloading tokens from the station turnstiles, carrying the 25- to 30-pound bags of tokens to the station booth and pouring the tokens into the counting machine. However, claimant acknowledged that tokens were not utilized after 2003, but stated that she is still required to lift very heavy bags of quarters in the station booth.

Neither claimant's testimony nor the medical records contain any information as to the frequency or repetitiveness with which claimant lifted any heavy bags within the station booth. Moreover, Roberts' opinion did not indicate a correlation or mechanism by which the bag-lifting activity caused any, let alone all, of the injuries diagnosed. In the absence of such information, the Board rejected Roberts' medical opinion as not credible, which it was entitled to do (see Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d at 1237; Matter of Yanas v Bimbo Bakeries, 134 AD3d 1321, 1321 [2015]). Further, the medical evidence submitted by the employer indicated that claimant's injuries were not a result of repetitive work activity. Consequently, as there was no medical evidence establishing a recognizable link between claimant's injuries and repetitive movements associated with her work activities, substantial evidence supports the Board's determination that claimant did not establish that she sustained a causally-related occupational disease (see Matter of Patalan v PAL Envtl., 202 AD3d at 1253; Matter of Barker v New York City Police Dept., 176 AD3d at 1272-1273; Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d at 1238). We have reviewed claimant's remaining contentions and find them to be unpersuasive.

Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Employee's unauthorized absences, together with his failure to follow employer's sick leave policy, served as a good-faith basis for employee's dismissal from the position

Matter of Martinez v City of New York

2022 NY Slip Op 04096

Decided on June 23, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 23, 2022
Before: Renwick, J.P., Kern, Kennedy, Mendez, Higgitt, JJ.

Index No. 154634/20 Appeal No. 16180 Case No. 2021-01665

[*1]In the Matter of Jermell Martinez, Petitioner-Appellant,

v

City of New York et al., Respondents-Respondents.

Law Office of Caner Demirayak, P.C., Brooklyn (Caner Demirayak of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.

 

Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about April 6, 2021, denying the petition to vacate a determination by respondent New York City Administration for Children's Services (ACS), dated December 3, 2019, which terminated petitioner's employment, and granting respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner failed to show by competent proof that ACS terminated his employment in bad faith, or for an improper or impermissible reason (see Matter of Che Lin Tsao v Kelly, 28 AD3d 320, 321 [1st Dept 2006]; see also Matter of Patterson v City of New York, 173 AD3d 540, 541 [1st Dept 2019], lv denied 35 NY3d 906 [2020]). Petitioner's unauthorized absences from November 13, 2019 to the date of his termination, along with his failure to follow ACS sick leave policy, served as a good-faith basis for firing him (see e.g. Morgan v Kerik, 267 AD2d 8, 9 [1st Dept 1995]; Simpson v Abate, 213 AD2d 190, 191 [1st Dept 1994]).

The petition also fails to adequately allege that ACS violated the Family Medical Leave Act, as petitioner did not assert that he had worked for ACS for 12 months or 1,250 hours, and thus failed to demonstrate that he was an eligible employee under 29 USC § 2611(2)(A)(ii) (see Donahue v Asia TV USA Ltd., 208 F Supp 3d 505, 512 [SD NY 2016]). Indeed, petitioner admits that he was employed by ACS for only seven months, and he failed to preserve for review his contention that ACS and his previous employer, the Department of Education, constituted a "single employer" (see Green v New York City Police Dept., 34 AD3d 262, 263 [1st Dept 2006]).

Petitioner has failed to set forth a claim under the New York City Human Rights Law (Administrative Code of City of NY § 8-107), as the petition does not plead any facts supporting an inference of discrimination based on petitioner's status as a caregiver (see e.g. Whitfield-Ortiz v Department of Educ. of the City of N.Y., 116 AD3d 580, 581 [1st Dept 2014]; Askin v Department of Educ. of City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 23, 2022

The State may not be held liable for the actions of a state-employed judge cloaked with judicial immunity

Moskovits v State of New York

2022 NY Slip Op 04098

Decided on June 23, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 23, 2022
Before: Renwick, J.P., Kern, Kennedy, Mendez, Higgitt, JJ.

Appeal No. 16176 Case No. 2022-00715 Claim No. 135693

[*1]Alexander Moskovits, Claimant-Appellant,

v

The State of New York, Defendant-Respondent.

Alexander Moskovits, appellant pro se.

Letitia James, Attorney General, New York (David Lawrence III of counsel), for respondent.

 

Order, Court of Claims of the State of New York (Jeanette Rodriguez-Morick, J.), entered August 3, 2021, which granted defendant's motion to dismiss the claim, unanimously affirmed, without costs.

This action is a byproduct of several state and federal actions commenced by plaintiff, a dual citizen of the United States and Brazil who resides in Brazil. In those actions, which have been dismissed, plaintiff alleged that he was not compensated for his "unique work product," which allegedly resulted in $2 billion in "unprecedented transactions" between the Brazilian states and Bank of America. In this Court of Claims action, claimant pro se sues the Justice who dismissed a state action and the "Court Administration," among others.

The claim, including any cause of action for "fraud on the court," is barred by the doctrines of res judicata (see Rojas v Romanoff, 186 AD3d 103, 108 [1st Dept 2020]) and collateral estoppel (see Conason v Megan Holding, LLC, 25 NY3d 1, 17 [2015]) based on dismissal of the "identical parallel federal court action" and a prior order of this Court affirming the orders that claimant now essentially seeks review of (Moskovits v Bank of Am. N.A., 2021 WL 1299038, 2021 US Dist LEXIS 67477 [SD NY 2021], affd 2022 WL 1150626, 2022 US App LEXIS 10479 [2d Cir 2022]). In any event, the court correctly held the claim is barred by the doctrine of judicial immunity, which "extends to all judges and encompasses all judicial acts, even if such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly" (Sassower v Finnerty, 96 AD2d 585, 586 [2d Dept 1983], appeal dismissed 61 NY2d 756, lv denied 61 NY2d 985 [1984]). The State may not be held liable for the actions of a state-employed judge that are cloaked with judicial immunity (Montesano v State of New York, 11 AD3d 436 [2d Dept 2004]). Claimant's allegation of impropriety amounts to nothing more than an allegation of corruption, which is insufficient to overcome judicial immunity (Rosenstein v State of New York, 37 AD3d 208, 208-209 [1st Dept 2007]; Tarter v State of New York, 68 NY2d 511, 518 [1986]; Sassower, 96 AD2d at 586), and no exception to application of the doctrine (Alvarez v Snyder, 264 AD2d 27, 34 [1st Dept 2000]; see Sassower, 96 AD2d at 586-587) is present here.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 23, 2022

Probationary employee failing to file a timely written notice of her decision to exercise her retreat rights adversely affected her right to reinstatement to her prior position

Matter of Civil Serv. Employees Assn., Inc., Local 100, AFSCME, AFL-CIO v City of Mount Vernon

2022 NY Slip Op 04023

Decided on June 22, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 22, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
REINALDO E. RIVERA
ROBERT J. MILLER
PAUL WOOTEN, JJ.

2019-03102
(Index No. 663787/18)

[*1]In the Matter of Civil Service Employees Association, Inc., Local 100, AFSCME, AFL-CIO, et al., appellants,

v

City of Mount Vernon, et al., respondents.

Charny & Wheeler P.C., Rhinebeck, NY (Nathaniel K. Charny of counsel), for appellants.

Bond, Schoeneck & King, PLLC, Garden City, NY (Richard S. Finkel and Terry O'Neil of counsel), for respondents City of Mount Vernon and Municipal Civil Service Commission City of Mount Vernon.

Bank, Sheer, Seymour & Hashmall, White Plains, NY (Jay B. Hashmall of counsel), for respondent Deborah Reynolds.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondents to reinstate the petitioner Jillian Rizo-Brewington to her prior position of employment, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated February 19, 2019. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs.

On or about June 25, 2014, the petitioner Jillian Rizo-Brewington commenced her employment with the City of Mount Vernon in the position of Account Clerk in the Comptroller's Office and, on February 24, 2016, she was permanently appointed to the position of Account Clerk subject to a six-month probationary period. In 2017, Rizo-Brewington was promoted to the position of Senior Account Clerk and, on May 3, 2018, she was terminated from that position for insubordination. On August 31, 2018, Rizo-Brewington and the petitioner Civil Service Employees

Association, Inc., Local 1000, AFSCME, AFL-CIO commenced the instant proceeding pursuant to CPLR article 78 against the respondents, City of Mount Vernon, Municipal Civil Service Commission City of Mount Vernon, and Deborah Reynolds, seeking, inter alia, that Rizo-Brewington be reinstated to employment at her prior position of Account Clerk. The City and Municipal Civil Service Commission City of Mount Vernon interposed an answer and opposed the petition. Reynolds also interposed an answer and opposed the petition. In a judgment dated February 19, 2019, the Supreme Court denied the petition and dismissed the proceeding. The petitioners appeal. We affirm.

The challenge to the respondents' actions is not ripe for judicial review. Administrative determinations may be challenged in a CPLR article 78 proceeding only after the determination is final (see CPLR 7801[1]; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d 986, 989). At the time of the commencement of this proceeding, Rizo-Brewington had not made a request to the respondents to be reinstated to her prior position of Account Clerk and they [*2]had not determined that she should not be reinstated. As no determination had been rendered as of the date of the commencement of this proceeding, the controversy is not ripe for judicial review (see Matter of Arcamone-Makinano v Perlmutter, 196 AD3d 479, 481; Matter of Ranco Sand & Stone Corp. v Vecchio, 124 AD3d 73, 86-87, affd 27 NY3d 92; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d at 989).

Further, since Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights to her prior position under Municipal Civil Service Commission of the City of Mount Vernon Rule XVI(2)(b), she was not entitled to reinstatement to her prior position of Account Clerk. Mount Vernon Municipal Civil Service Commission Rule (hereinafter Rule) XVI (2)(b) provides that a "provisional, temporary or contingent permanent appointee may return to his/her permanent position at any time by providing written notice to the appointing authority requesting to be returned to such permanent position. The appointing authority shall return such appointee to his/her permanent position within fifteen days of receipt of such written notice." Rizo-Brewington was a provisional employee who possessed retreat rights to her prior position of Account Clerk. However, Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights under Rule XVI(2)(b). Accordingly, since she did not comply with her obligations pursuant to Rule XVI(2)(b), the Supreme Court correctly determined that the respondents were not required to reinstate Rizo-Brewington to her prior position.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

CONNOLLY, J.P., RIVERA, MILLER and WOOTEN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court