Nedd v. Koehler

• Decision Date: 20 March 1990
• Citation: 552 N.Y.S.2d 622,159 A.D.2d 344
• Parties: In re Application of Saundra NEDD, Petitioner-Appellant, For a Judgment etc., v. Richard KOEHLER, etc., et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 622

552 N.Y.S.2d 622

159 A.D.2d 344

In re Application of Saundra NEDD, Petitioner-Appellant For a Judgment etc., v. Richard KOEHLER, etc., et al., Respondents-Respondents.

Supreme Court, Appellate Division,

First Department.

March 20, 1990.

B.H. Daly, for petitioner-appellant.

P.L. Taylor, for respondents-respondents.

Before KUPFERMAN, J.P., and ASCH, KASSAL, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Jacqueline Silbermann, J.), entered December 7, 1988, which dismissed the petition in this Article 78 proceeding as time barred pursuant to CPLR 217, is unanimously affirmed without costs.

On January 20, 1988, petitioner, a suspended but tenured corrections officer, appeared without legal counsel at a Departmental Disciplinary Hearing in response to a number of charges and specifications, the most serious of which were an off-duty arrest for loitering and trespassing in a known drug use location, failure to report that arrest to her appropriate superiors, and a positive finding of her cocaine use following a urinalysis test ordered by the Corrections Department after learning of the arrest. It is not disputed that the departmental advocate advised petitioner of her right to an adjournment of the hearing to obtain counsel, or, in the alternative, to consult with an attorney from her union present in the building. After declining these offers and signing a waiver of counsel, petitioner entered into a plea agreement disposing of all charges by her acceptance of the following penalties: a 58-day suspension, a return for one year to probationary status, and her voluntary submission during that year to 12 random urinalysis tests. Such agreements are enforceable, for "it is clear that by means of a settlement an employee who enjoys permanent status may, if voluntarily and knowingly done, waive statutory and contractual rights to a hearing before dismissal, where such waiver serves as the consideration for the curtailment of pending disciplinary proceedings." (Whitehead v. New York State Dept. of Mental Hygiene, 71 A.D.2d 653, 654, 418 N.Y.S.2d 806, aff'd for reasons stated at Appellate Division, 51 N.Y.2d 781, 433 N.Y.S.2d 98, 412 N.E.2d 1323; Matter of Miller v. Coughlin and NYS Dept. of Correctional Services, 59 N.Y.2d 490, 465 N.Y.S.2d 913, 452 N.E.2d 1241; Matter of Shannon v. NYS Dept. of Correctional Services, 131 A.D.2d 915, 516 N.Y.S.2d 518; Matter of Melvin Brothers v. Pilgrim Psychiatric Center, 131 A.D.2d 756, 517 N.Y.S.2d 55).

On February 10, 1988, conceded by petitioner to be "pursuant to the Negotiated Plea Agreement" (Br. pp. 4-5), plaintiff was ordered to take the first drug test, which resulted in a positive finding for cocaine. In view of petitioner's then-probationary status, the Department dismissed her without a hearing on April 26, 1988. She commenced this Article 78 proceeding on August 18, 1988.

Despite the fact that this proceeding was commenced within four months of petitioner's formal discharge, IAS was...