Schweit v. Abate

Appellate Division of the Supreme Court of New York

Schweit v. Abate

200 A.D.2d 522, 606 N.Y.S.2d 670

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

DecidedJanuary 25, 1994

StatusPublished

Cited by1 cases

This text of 200 A.D.2d 522 (Schweit v. Abate) 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.

Bluebook

Schweit v. Abate, 200 A.D.2d 522, 606 N.Y.S.2d 670 (N.Y. Ct. App. 1994).

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Opinion

—Order and judgment (one paper), Supreme Court, New York County (Stanley Sklar, J.), entered on or about February 4, 1993, which dismissed the petition brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner tendered his resignation pursuant to a negotiated plea agreement, entered into after conferring with counsel and the Administrative Law Judge. The resignation was effective, pursuant to a departmental rule, upon acceptance by the Acting Assistant Commissioner, who was authorized by the statutory appointing authority, and thus could not be withdrawn without respondent’s consent (Public Officers Law § 31 [4]). The situation is thus distinguishable from that in Matter of Wonderly v Division of N Y. State Police (80 AD2d 974), where it was conceded that petitioner attempted to withdraw his resignation before it had been approved, and that in Matter of Lanthier v Department of Transp. (183 AD2d 1083, 1085), where there was a question of fact whether the recipient of the resignation qualified as the statutory " 'appointing authority’ ”. Under the circumstances, especially in view of petitioner’s history of negotiated settlements of disciplinary charges, the refusal to permit withdrawal of his resignation was not arbitrary or capricious. Concur — Carro, J. P., Ellerin, Asch and Nardelli, JJ.

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—Order and judgment (one paper), Supreme Court, New York County (Stanley Sklar, J.), entered on or about February 4, 1993, which dismissed the petition brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner tendered his resignation pursuant to a negotiated plea agreement, entered into after conferring with counsel and the Administrative Law Judge. The resignation was effective, pursuant to a departmental rule, upon acceptance by the Acting Assistant Commissioner, who was authorized by the statutory appointing authority, and thus could not be withdrawn without respondent’s consent (Public Officers Law § 31 [4]). The situation is thus distinguishable from that in Matter of Wonderly v Division of N Y. State Police (80 AD2d 974), where it was conceded that petitioner attempted to withdraw his resignation before it had been approved, and that in Matter of Lanthier v Department of Transp. (183 AD2d 1083, 1085), where there was a question of fact whether the recipient of the resignation qualified as the statutory " 'appointing authority’ ”. Under the circumstances, especially in view of petitioner’s history of negotiated settlements of disciplinary charges, the refusal to permit withdrawal of his resignation was not arbitrary or capricious. Concur — Carro, J. P., Ellerin, Asch and Nardelli, JJ.

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Bluebook (online)

200 A.D.2d 522, 606 N.Y.S.2d 670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schweit-v-abate-nyappdiv-1994.

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