New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

In the Matter of Jerome Skrine v New York City Department/ Board of Education

Petitioner brought this Article 78 proceeding to seek to compel Respondents to accept the revocation of his resignation.

On October 31, 2008, Petitioner resigned from his position as a tenured special education teacher. In a letter dated June 10, 2010, Petitioner stated that he wanted to revoke his resignation. However, the Board of Education refused verbally. Petitioner went on to admit that he resigned in October 2008 while there were disciplinary charges that were pending against him and the Board of Education did not grant him his due process.

Petitioner also maintained that this Article 78 proceeding is timely because “…the statue of limitations runs from the rejection of the revocation itself, which occurred in June 2010.” Under the Chancellor Regulation C-205(28), Petitioner claimed that he allowed “…to revoke his resignation within five years of the resignation, BOE is mandated to accept the revocation.”

The Court ruled that Petitioner’s action to revoke his resignation in October 2008 was barred by the four month status of limitations. Therefore, any claims Petitioner made after March 2009 was barred.

The court decided to grants the Respondent’s cross motion to dismiss on the ground that the statue of limitations expired and for failure to state a cause of action was granted. The petition was denied and the proceeding was dismissed.

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Matter of the Application of Philomena Brennan v New York City Department of Education

Petitioner, a tenured teacher, started an Article 78 proceeding against the New York City Department of Education. She wanted her name to be removed from the DOE’s Ineligible/Inquiry List and for the DOE to allow her to withdraw her resignation.

In the spring of 2006, petitioner was working as a full-time teacher Frederick Douglas Academy in Brooklyn. At the end of the school year, the principal informed petitioner that she was receiving an unsatisfactory rating. Immediately after being informed of her “U” rating, petitioner formally resigned.

A few years later, petitioner began to take steps to with her resignation. In January 2009, she returned to the school to speck to the principal. Petitioner saw the principal and was escorted to her office and told to wait. Approximately ten minutes later, petitioner was “handcuffed and charged with misdemeanor of trespass and the violation of harassment.” She immediately informed the DOE of the arrest, as the rules are stated and she was placed on the DOE’s Ineligible/Inquiry List, which makes her ineligible for rehire or for a teaching assignment.

In June 2009, all criminal charges against the petitioner were dismissed. So, she requested the DOE remove her for the DOE’s Ineligible/ Inquiry List. The IA Deputy Chancellor Teaching and Learning signed an undated letter stating she has been approved to be removed for the list. However, due to no date on the letter, the court determined that the effective date would be June 11, 2009, when petitioner initially applied to have her name removed from the list. Now, petitioner sought to have her resignation withdrawn, but she had to wait for all paperwork regarding the list is completed. Therefore, the petition to withdraw he resignation is premature.

The petition was granted as it requests the removal of the name of Philomena Brennan, petitioner, from the Ineligible/Inquiry List maintained by respondent New York City Department of Education, effective June 11, 2009 and the court ordered that respondent's cross-motion to dismiss petitioner's claim regarding the withdrawal of her resignation as a teacher is granted, and that claim is dismissed without prejudice and without costs or disbursements to either party due to it prematurity.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

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Gilliam v. New York City Department of Sanitation

Index No. 1664/08

Charles Gilliam, Petitioner, moves, by order to show cause, to withdraw his resignation from the New York City Department of Sanitation, Respondents.

 Mr. Gilliam while a uniformed sanitation worker, tested positive for cocaine in June 2007. Accordingly, he was suspended and sent to a rehabilitation center. Prior to returning to work, Mr. Gilliam submitted to a second drug test in August 2007 and again failed. After his two failed drug tests and his attempt at rehabilitation, DSNY gave Mr. Gilliam a third chance in the form of a Last Chance Agreement. The Last Chance Agreement was an offer for Petitioner to accept a plea bargain to resolve all departmental charges against him. By signing this agreement, Petitioner waived any hearing or right to be heard for the purpose of contesting a subsequent positive drug test or refusal to test and have the Department Advocate the right to submit his resignation in the case of a third positive drug test. Mr. Gilliam voluntarily entered into the Last Chance Agreement and was aware that a third positive drug test would result in the termination of his employment.

 In November 2007, Petitioner failed a drug test for the third time. The urine sample, Mr. Gilliam submitted was substituted and found to be not urine. As a result of these laboratory findings, as required by the Last Chance Agreement, Petitioner’s resignation was submitted.

Mr. Gilliam does not dispute the test results but claims that the City and DSNY should have treated him for a line of duty injury due to Post Traumatic Stress Disorder caused by his experiences working during the 9/11. Mr. Gilliam, however, has failed to present the Court with any documentation that he worked at Ground Zero or the Staten Island landfill where Ground Zero debris was transported. While, the Court is sympathetic to Petitioner’s plea for help, they feel he has been given ample opportunity by respondents to solve his drug and alcohol problems.

 Petitioner Gilliam failed to present any evidence that he was coerced to sign the Last Chance Agreement. He voluntarily entered into his Last Chance Agreement in order to dispose of various departmental disciplinary charges resulting from his positive drug tests and substance abuse.

 Accordingly, the Supreme Court denied the petitioner’s order to show cause and granted respondents’ summary judgment and dismissal of the instant petition.

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