Cacchioli v. Hoberman

• Decision Date: 02 November 1972
• Citation: 291 N.E.2d 117,31 N.Y.2d 287,338 N.Y.S.2d 865
• Parties: , 291 N.E.2d 117 In the Matter of Robert L. CACCHIOLI, Respondent, v. Solomon HOBERMAN et al., Constituting the City Civil Service Commission, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 865

338 N.Y.S.2d 865

31 N.Y.2d 287, 291 N.E.2d 117

In the Matter of Robert L. CACCHIOLI, Respondent, v. Solomon HOBERMAN et al., Constituting the City Civil Service

Commission, et al., Appellants.

Court of Appeals of New York.

Nov. 2, 1972.

John A. Murray, John G. de Roos and Helen R. Cassidy, Brooklyn, for appellants.

Nathan R. Shapiro, New York City, for respondent.

FULD, Chief Judge.

The court is unanimous in holding--as set forth in that portion of the concurring opinion denominated part I (pp. 866--869 of 338 N.Y.S.2d, 118--120 of 291 N.E.2d)--that the New York City Transit Authority Police Department would not have been justified in discharging the petitioner on the ground that his failure to divulge his youthful offender adjudication on his job application questionnaire did not constitute a willful misrepresentation. The court likewise unanimously agrees that the proceeding should be remanded to the court at Special Term to decide whether or not the petitioner's resignation was obtained by duress.

The court does not, however, reach or pass upon the further questions--discussed in part II of the concurring opinion (pp. 869 873 of 338 N.Y.S.2d, 120--123 of 291 N.E.2d)--whether the appellant department may, in determining the fitness of the petitioner herein or of any other job applicant, consider an illegal act or arrest which culminates in a youthful offender adjudication.

The order appealed from should be modified, without costs, and the proceeding remanded to the Supreme Court, Queens County, for a trial to determine whether the resignation executed by the petitioner was voluntary.

I

JASEN, Judge (concurring).

In June, 1968, petitioner, then 17 years old, passed a competitive civil service examination for the position of Police Trainee with the New York City Transit Authority Police Department (Authority). As a candidate for Police Trainee, he was advised that any misrepresentation in his application was ground for disqualification or dismissal, and that the 'employment of a police trainee may be terminated at any time, if his conduct, capacity or fitness is not satisfactory.'

Prior to his appointment, petitioner was required to and did execute an 'Investigation of Applicant-Questionnaire', which required him to '(l)ist all arrests and any police investigations not resulting in arrests (Include Juvenile Delinquency, Youthful Offender, Wayward Minor and Family Ct. Proceedings)'. ¹ At the time of his probationary appointment, petitioner was advised that he would be 'investigated thoroughly as to character and fitness' before becoming a permanent member of the Transit Authority Police Department.

Subsequent investigation by the Authority indicated that petitioner made several false responses to the questionnaire. Specifically, the investigation revealed that in January, 1967, petitioner had been arrested in Queens County and charged with criminally receiving stolen property (10 stolen automobile tires). This charge was dismissed, apparently so that he could be surrendered on a Dutchess County arrest warrant, which charged him with burglary third degree. Both charges arose out of a single transaction involving a burglary resulting in the theft of 10 tires from a gasoline station in Dutchess County. With respect to the burglary, petitioner pleaded guilty to a reduced charge of malicious mischief and was adjudged a youthful offender.

Since petitioner did not disclose these prior incidents in his questionnaire, he was called to account before a superior officer on September 18, 1969, on which occasion, confronted with the afore-mentioned misrepresentations, he submitted his resignation from the department.

Shortly thereafter, petitioner commenced this article 78 proceeding, in the nature of mandamus, to compel his reinstatement, pleading that he was forced to execute his resignation under duress. In support of his claim of duress, petitioner alleged in his petition that on September 18, his superior, after informing him that he had failed to disclose his previous arrests in his questionnaire, gave him a choice to resign immediately or be fired; that he was refused permission to call his attorney or parents; and that he executed a resignation previously prepared by the Authority and handed to him. ²

In its answer, the Authority denied his allegations, averring that petitioner voluntarily submitted his resignation after being confronted with the results of the investigation, and accordingly pleaded, as a defense, that a reviewable determination was not raised by his petition. Alternatively, the Authority contended that the false statements contained in the questionnaire justified his dismissal.

Special Term, on the basis of the papers before it and without holding a hearing, found that the Authority had procured petitioner's resignation through duress and directed a trial of the factual question of whether petitioner had knowingly made any material misrepresentations to the Authority to secure his appointment as a Police Trainee. The ensuing trial resulted in an order directing petitioner's reinstatement. On appeal, the Appellate Division unanimously affirmed this determination.

To begin with, as to the question of whether petitioner resigned under duress, it was not within the province of Special Term to accept the allegations of the petitioner at face value and find, without a hearing, that his resignation 'in no sense can be deemed voluntary', as the events leading to his resignation were sharply controverted in the answer filed by the Authority. (Cf. Matter of Durr v. Paragon Trading Corp., 270 N.Y. 464, 1 N.E.2d 967; Matter of Carthage Paper Makers v. Mutual Box Bd. Co., 2 A.D.2d 175, 153 N.Y.S.2d 759; Matter of Cravatts v. Klozo Fastener Corp., 282 App.Div. 1014, 126 N.Y.S.2d 247; Matter of Schulman v. Dejonge & Co., 270 App.Div. 147, 59 N.Y.S.2d 119; 8 Weinstein-Korn-Miller, N.Y.Civ,Prac. 7803.10, 7803.14.)

Rather, the court should have directed a trial pursuant to CPLR 7804 (subd. (h)) to resolve the factual issue raised by the pleadings and affidavits concerning petitioner's allegations of duress, and to make appropriate findings of fact before proceeding any further. It should be noted that a threat by an employer to do what the employer has the right to do does not constitute fraud or duress. (Bachorik v. Allied Control Co., 34 A.D.2d 940, 942, 312 N.Y.S.2d 272, 275.) Under analogous circumstances involving the involuntary resignation of a corporate officer, the Appellate Division was held: '(The officer's) testimony further demonstrates that the events surrounding his resignation did not contain the elements of wrongful conduct necessary to establish the claims of duress and undue influence. What plaintiff relies upon is the fact that he was told that he would be involuntarily discharged, without severance pay and that this might be disclosed to prospective employers. This can neither be considered a threat, nor false advice, since defendants had the right to discharge plaintiff, who was an employee at will, were not under any duty to continue his salary and were privileged to inform prospective employers of the circumstances surrounding the termination of his employment. A threat to do that which one has the legal right to do does not constitute duress or fraud.' (Bachorik v. Allied Control Co., 34 A.D.2d, at p. 942, 312 N.Y.S.2d at p. 275.)

Thus, a person's resignation may not be considered to be obtained under duress unless the employer threatened to take action which it had no right to take. It follows that if the Authority did in fact make a threat to fire petitioner if he did not resign, this threat would not constitute duress unless the Authority had no right to discharge him. In this regard, it should be pointed out that the petitioner was a provisional employee, and as such, the Authority was entitled to discharge him without a hearing so long as its action was not arbitrary or capricious. (Matter of Albury v. New York City Civ Serv.Comm., 32 A.D.2d 895, 302 N.Y.S.2d 3, affd. 27 N.Y.2d 694, 314 N.Y.S.2d 13, 262 N.E.2d 219.)

In sum, the proceeding should be remanded to the court at Special Term to decide the factual issue of whether or not the petitioner's resignation was obtained by duress.

If Special Term finds that petitioner's resignation was not obtained under duress, then his resignation stands and the proceeding should be dismissed. Under these circumstances, the proceeding would be treated as one to review the actions of the Authority in refusing to reinstate him. This is tantamount to review of discretionary action denying appointment to an eligible candidate (Matter of Doering v. Hinrichs, 289 N.Y. 29, 33, 43 N.E.2d 709, 710; Matter of Baumet v. Lyons, 272 App.Div. 1095, 74 N.Y.S.2d 777), and, as such, is not the concern of the courts (Matter of Turel v. Delaney, 287 N.Y. 15, 16, 38 N.E.2d 111; Matter of Delicati v. Schechter, 3 A.D.2d 19, 21, 157 N.Y.S.2d 715, 718).

On the other hand, if Special Term finds, after trial, that the Authority obtained petitioner's resignation under duress, then he would be entitled to reinstatement to his former position since the Authority would not have been justified in discharging the petitioner on the sole ground that his failure to divulge his youthful offender adjudication on his job application questionnaire constituted a willful misrepresentation. ³ It was not a willful misrepresentation, the evidence discloses, for the reason that the Justice of the Peace presiding at the youthful offender adjudication advised the petitioner that he was not required to divulge the adjudication on employment applications.

II

This does not mean, however, that the Authority is required to retain the petitioner in the position of Police Trainee, in the event Special Term orders his reinstatement after the hearing upon remand of this proceeding, if the Authority thereafter determines that his integrity, judgment or...