Matter of Martinez v. State University of New York-College at Oswego

• Citation: 13 A.D.3d 749,787 N.Y.S.2d 409,2004 NY Slip Op 09140
• Decision Date: 09 December 2004
• Docket Number: 94883.
• Parties: In the Matter of ODILON MARTINEZ, Respondent, v. STATE UNIVERSITY OF NEW YORK-COLLEGE AT OSWEGO et al., Appellants.
• Court: New York Supreme Court Appellate Division

13 A.D.3d 749

787 N.Y.S.2d 409

2004 NY Slip Op 09140

In the Matter of ODILON MARTINEZ, Respondent, v. STATE UNIVERSITY OF NEW YORK-COLLEGE AT OSWEGO et al., Appellants.

94883.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 9, 2004.

Appeal from a judgment of the Supreme Court (Lamont, J.), entered August 8, 2003 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to, inter alia, compel respondent State University of New York-College at Oswego to accept petitioner's withdrawal of his letter of resignation.

CREW III, J.P.

The facts giving rise to this proceeding are more fully set forth in our previous decision (294 AD2d 650 [2002]). In brief, in June 2000, petitioner was informed by his employer, respondent State University of New York-College at Oswego, that his probationary position as Laborer, grade 6 was to be terminated and that he would be reinstated as a Cleaner, grade 5. Apparently embarrassed by this demotion, petitioner met with Marta Santiago, the University's manager of human resources, and informed her that he wished to resign. Accordingly, Santiago prepared a letter of resignation, which petitioner signed. The following day, petitioner received notice that his resignation had been accepted. Two business days later, petitioner wrote to Santiago seeking to withdraw his resignation. Santiago denied the request to withdraw because petitioner's resignation "had already been accepted."

Petitioner thereafter commenced this CPLR article 78 proceeding alleging, inter alia, that the decision to deny his request to withdraw his resignation was arbitrary and capricious. Respondents made a preanswer motion to dismiss the petition, which was granted by Supreme Court. On appeal, we reversed and remitted the matter to Supreme Court (id.). Upon remittal, Supreme Court ruled, without a hearing, that Santiago's refusal to permit petitioner to withdraw his resignation was arbitrary and capricious. Respondents now appeal.

As a starting point, it is clear that a resignation may not be withdrawn after it has been delivered to the appointing authority without the consent of such authority (see 4 NYCRR 5.3 [c]). Furthermore, inasmuch as a decision to consent to a withdrawal of a resignation is a discretionary act, a proceeding challenging a refusal to consent to withdrawal is in the nature of mandamus to review (see Matter of Edelman v Axelrod, 111 AD2d 468, 469 [1985]). Accordingly, we are called upon to determine whether the refusal here was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]).

It is of note that Santiago's initial explanation for her refusal to consent to the withdrawal of the letter of resignation was that it already had been...