DeVito v. Department of Education

Appellate Division of the Supreme Court of New York

DeVito v. Department of Education

112 A.D.3d 421, 975 N.Y.S.2d 672

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 3, 2013

StatusPublished

This text of 112 A.D.3d 421 (DeVito v. Department of Education) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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DeVito v. Department of Education, 112 A.D.3d 421, 975 N.Y.S.2d 672 (N.Y. Ct. App. 2013).

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Opinion

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered August 9, 2012, which denied the petition seeking to, inter alia, annul respondents’ determination, dated February 14, 2011, terminating petitioner’s employment, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

As a probationary employee, petitioner was subject to termination “at any time and for any reason, unless [she] established] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith” (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). Petitioner has not met her burden (see Matter of Witherspoon v Horn, 19 AD3d 250 [1st Dept 2005]).

The fact that respondent Department of Education’s determination to terminate petitioner’s employment occurred after the effective date of her resignation does not render it one made in “bad faith.” Pursuant to Chancellor’s Regulation C-205, 1Í 26, despite her resignation, there was still a possibility that petitioner could return to work in the future, and thus the resignation was not irrevocable (see e.g. Matter of Folta v Sobol, 210 AD2d 857 [3d Dept 1994]). Concur — Andrias, J.E, Acosta, Moskowitz, Richter and Manzanet-Daniels, JJ. [Prior Case History: 2012 NY Slip Op 32073(11).]

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Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered August 9, 2012, which denied the petition seeking to, inter alia, annul respondents’ determination, dated February 14, 2011, terminating petitioner’s employment, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

As a probationary employee, petitioner was subject to termination “at any time and for any reason, unless [she] established] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith” (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). Petitioner has not met her burden (see Matter of Witherspoon v Horn, 19 AD3d 250 [1st Dept 2005]).

The fact that respondent Department of Education’s determination to terminate petitioner’s employment occurred after the effective date of her resignation does not render it one made in “bad faith.” Pursuant to Chancellor’s Regulation C-205, 1Í 26, despite her resignation, there was still a possibility that petitioner could return to work in the future, and thus the resignation was not irrevocable (see e.g. Matter of Folta v Sobol, 210 AD2d 857 [3d Dept 1994]). Concur — Andrias, J.E, Acosta, Moskowitz, Richter and Manzanet-Daniels, JJ. [Prior Case History: 2012 NY Slip Op 32073(11).]

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Bluebook (online)

112 A.D.3d 421, 975 N.Y.S.2d 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devito-v-department-of-education-nyappdiv-2013.

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