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Matter of Smith v. Kunkel

Appellate Division of the Supreme Court of New York, Third Department
Jul 20, 1989
152 A.D.2d 893 (N.Y. App. Div. 1989)

Opinion

July 20, 1989

Appeal from the Supreme Court, Albany County (Cobb, J.).


Petitioner was employed in a permanent status by respondent State Division of Equalization and Assessment (hereinafter the Division) when, by letter dated August 21, 1986, he submitted his resignation to respondent Joseph L. Kunkel, the Division's administrative officer, effective September 3, 1986. The resignation was for "personal reasons" apparently prompted by petitioner's continued health problems stemming from a June 1986 automobile accident. In a follow-up letter dated August 29, 1986, petitioner wrote to Kunkel seeking to withdraw and rescind his resignation. By written response the same date, Kunkel refused the withdrawal request, citing 4 NYCRR 5.3 (c) and noting that the resignation had been accepted on August 21, 1986. Thereafter, petitioner, acting pro se, unsuccessfully commenced a breach of contract action against Kunkel and a CPLR article 78 proceeding against, among others, the Civil Service Department. By letter dated September 25, 1987, petitioner wrote to Kunkel demanding reinstatement. After receiving no response, petitioner commenced the instant CPLR article 78 proceeding challenging Kunkel's refusal to permit withdrawal of the resignation as arbitrary and capricious, and contending that 4 NYCRR 5.3 (c) was unconstitutional. Supreme Court granted respondents' motion to dismiss the petition as barred by the governing four-month Statute of Limitations and further declared the challenged regulation constitutional. Petitioner has appealed.

We note that Supreme Court effectively converted this aspect of the proceeding into a declaratory judgment action (see, Matter of Choe v Axelrod, 141 A.D.2d 235, 238-239).

We affirm. Petitioner's challenge to Kunkel's August 29, 1986 refusal to allow the withdrawal of his resignation is in the nature of mandamus to review (see, Matter of Edelman v Axelrod, 111 A.D.2d 468, 469). As such, the four-month limitations period began to run at least by the effective date of petitioner's resignation, i.e., September 3, 1986 (supra). Since this proceeding was commenced one year later, it was clearly untimely. Nor did petitioner's September 1987 reinstatement demand serve to extend this limitations period (see, Matter of De Milio v Borghard, 55 N.Y.2d 216, 220; Matter of Seidner v Town of Colonie, Bd. of Zoning Appeals, 55 N.Y.2d 613). Petitioner's further assertion that respondents should be estopped from raising the limitations defense was not asserted before Supreme Court and, in any event, lacks merit (see, Griesemer v Bourst, 141 A.D.2d 919, 920). Thus, his nonconstitutional challenge was properly dismissed as untimely.

We note that the earlier action and proceeding were both commenced after the four-month limitations period expired.

Petitioner's challenge to the constitutional validity of 4 NYCRR 5.3 (c) is also without basis. Pursuant to this regulation, a resignation may not be withdrawn absent the consent of the appointing authority, in this instance, the Division (see, Matter of Edelman v Axelrod, supra, at 469). Essentially, petitioner maintains that the regulation is constitutionally invalid because it permits the employer to reject a resignation withdrawal without according the employee any procedural safeguards. As a permanent employee, petitioner maintains that he was entitled to a hearing prior to the termination of his employment (citing, Civil Service Law § 75; Matter of Johnson v Director, Downstate Med. Center, 52 A.D.2d 357, 363-369, affd 41 N.Y.2d 1061). Even accepting, arguendo, that this represents a timely facial challenge to the constitutional validity of the regulation (cf., Koeppel v Wachtler, 141 A.D.2d 613, 615), the argument overlooks the crucial fact that petitioner was not terminated, but voluntarily resigned. Under the circumstances presented, we do not consider the voluntariness of petitioner's resignation vitiated by the fact that Kunkel rejected his withdrawal request prior to the effective date of his resignation (cf., Cunningham v United States, 423 F.2d 1379). Consequently, petitioner's status as a permanent rather than provisional employee is of no moment. Having relinquished his position, petitioner did not retain any constitutionally protected property interest in continued employment (see, Stone v University of Md. Med. Sys. Corp., 855 F.2d 167, 172-173). Thus, the summary denial mechanism set forth in 4 NYCRR 5.3 (c) does not offend any procedural due process interest.

Judgment affirmed, without costs. Mahoney, P.J., Kane, Weiss, Levine and Harvey, JJ., concur.


Summaries of

Matter of Smith v. Kunkel

Appellate Division of the Supreme Court of New York, Third Department
Jul 20, 1989
152 A.D.2d 893 (N.Y. App. Div. 1989)
Case details for

Matter of Smith v. Kunkel

Case Details

Full title:In the Matter of RUSSELL J. SMITH, Appellant, v. JOSEPH L. KUNKEL et al.…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 20, 1989

Citations

152 A.D.2d 893 (N.Y. App. Div. 1989)
544 N.Y.S.2d 240

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