Winkler v. Kingston Housing Authority
| Decision Date | 04 March 1999 |
| Citation | 686 N.Y.S.2d 513,259 A.D.2d 819 |
| Parties | 1999 N.Y. Slip Op. 2008 Barbara WINKLER, Appellant, v. KINGSTON HOUSING AUTHORITY et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Rosenblum & Lamb (Daniel N. Lamb Jr. of counsel), Saugerties, for appellant.
Andrew P. Zweben, Kingston, for Kingston Housing Authority, respondent.
Before: CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ.
Appeal from a judgment of the Supreme Court (Fromer, J.H.O.), entered November 12, 1997 in Ulster County, upon a decision of the court in favor of defendants.
Plaintiff was hired by defendant Kingston Housing Authority (hereinafter the Authority) to work as an account clerk/typist in November 1993. By letter of May 12, 1995, the Authority suspended plaintiff without pay for a period not to exceed 30 days pursuant to Civil Service Law § 75(3), pending a determination of the disciplinary proceedings instituted against her. The Authority served her with a statement setting forth four charges of misconduct. In a letter dated May 17, 1995, plaintiff denied the charges and demanded a hearing pursuant to Civil Service Law § 75.
The disciplinary hearing commenced before the Authority's Board of Commissioners on the morning of June 8, 1995 at which plaintiff was represented by two attorneys, John Beisel and Louis Klein. Following the testimony of plaintiff's supervisor, defendant Steven Fischer, the Authority's Executive Director, and one other witness, both pertaining to the misconduct charges, the hearing was adjourned around noontime, at which time the parties engaged in settlement negotiations in an effort to resolve the charges. A verbal agreement was reached by all parties and the hearing was permanently terminated based thereon; unfortunately, its existence and terms were not placed on the record despite the presence of a court reporter. Subsequent efforts to memorialize the agreement in a written signed document were not successful. Plaintiff never returned to work, having removed her personal belongings from her desk on May 15, 1995 and, at Fischer's direction, turned in her keys on May 16, 1995. Plaintiff never submitted a signed letter of resignation.
Plaintiff commenced this action in January 1996 alleging that defendants had deprived her of her due compensation since her 30-day suspension ended in violation of Civil Service Law § 75. Defendants alleged in their answer that plaintiff had agreed to a negotiated settlement of the charges and sought a declaration that pursuant thereto plaintiff's employment had been terminated as of May 15, 1995. Supreme Court subsequently denied plaintiff's motion for summary judgment but granted her request for a preliminary injunction prohibiting her continued suspension. On appeal, we modified by reversing that part of the order which granted injunctive relief (see, 238 A.D.2d 711, 656 N.Y.S.2d 421).
After a nonjury trial, Supreme Court dismissed the complaint, concluding that plaintiff's employment had been terminated as of May 15, 1995. The court found that the parties had reached a verbal settlement agreement during the June 8, 1995 hearing which provided for plaintiff to receive six months of salary from that date and one year's health benefits; additionally, it was agreed that she would leave her employment and the Authority would cooperate with her efforts to be placed by the Civil Service Commission (hereinafter Commission) on a "preferred list" for civil service employment. The court rejected plaintiff's claim that she had not agreed to vacate her position, finding that she had consented to the settlement in which she agreed to leave defendant's employment in exchange for the inducements agreed upon; the court concluded that although she had not signed a written resignation, she had effectively resigned pursuant to the agreement by her actions subsequent to the hearing in not returning to her employment. Plaintiff has appealed.
We now affirm. Plaintiff's first contention is that she was denied the protections of Civil Service Law § 75 because defendants denied her a hearing and a final determination of the disciplinary charges against her. We disagree. Plaintiff was served with a statement of the charges and a hearing was held at which plaintiff was represented by counsel in full compliance with Civil Service Law § 75 (see, Matter of Johnson v. Director, Downstate Med. Ctr., State Univ. of N.Y., 52 A.D.2d 357, 367-368, 384 N.Y.S.2d 189, affd. 41 N.Y.2d 1061, 396 N.Y.S.2d 172, 364 N.E.2d 837). After detailed negotiations, the parties entered into a verbal agreement in full satisfaction of all disciplinary charges.
It is firmly established that a public employee who enjoys permanent status may waive the Civil Service Law § 75 right to a hearing and a final determination, or contractual rights to a hearing, by entering into a settlement agreement disposing of the charges, so long as the waiver is knowingly and intelligently undertaken and serves as the consideration for the curtailment of pending disciplinary proceedings (see, Whitehead v. State of New York Dept. of Mental Hygiene, 71 A.D.2d 653, 654, 418 N.Y.S.2d 806, affd. on mem below 51 N.Y.2d 781, 433 N.Y.S.2d 98, 412 N.E.2d 1323; see also, Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 N.Y.2d 450, 414 N.Y.S.2d 109, 386 N.E.2d 1077, cert. denied 444 U.S. 845, 100 S.Ct. 89, 62 L.Ed.2d 58; Simpson v. Abate, 213 A.D.2d 190, 625 N.Y.S.2d 2; Matter of Wilson v. Jackson, 161 A.D.2d 652, 555 N.Y.S.2d 429; Nedd v. Koehler, 159 A.D.2d 344, 552 N.Y.S.2d 622). Such agreements and waivers are not contrary to the public policy of this State (see, Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, supra ) and constitute valid enforceable contracts (see, Matter of Shannon v. State of New York Dept. of Correctional Servs., 131 A.D.2d 915, 916, 516 N.Y.S.2d 518, lv. denied 70 N.Y.2d 607, 521 N.Y.S.2d 224, 515 N.E.2d 909; Matter of Miller v. New York State Dept. of Correctional Servs., 126 A.D.2d 831, 510 N.Y.S.2d 745, affd. on mem below 69 N.Y.2d 970, 516 N.Y.S.2d 659, 509 N.E.2d 354).
The record supports the conclusion that plaintiff knowingly and voluntarily entered into the stipulation of settlement disposing of the charges and terminating the pending hearing (see, Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, supra, at 457-458, 414 N.Y.S.2d 109, 386 N.E.2d 1077); notably, plaintiff does not allege otherwise. She admitted she was in favor of settling the charges and was vigorously represented by counsel throughout the negotiations. Her attorneys consulted with her at every turn and prior to her consent to the final terms, as Supreme Court determined, and she does not argue that her collective bargaining agreement required a signed settlement agreement (cf., Matter of Miller v. Coughlin, 59 N.Y.2d 490, 465 N.Y.S.2d 913, 452 N.E.2d 1241). While it would have been preferable for the parties to have recorded the agreement in some fashion, an agreement on the record or in writing is not required by Civil Service Law § 75, case law or the Statute of Frauds and plaintiff does not assert otherwise (see, General Obligations Law § 5-701[a][1]; see also, Anametrics Servs. v. Clifford A. Botway Inc., 159 A.D.2d 247, 552 N.Y.S.2d 238). Plaintiff's claim to compensation beyond the 30-day suspension period must be rejected as she settled the charges during that suspension, waiving a final determination on those charges. Thus, plaintiff was accorded the full panoply of procedural and substantive rights guaranteed by Civil Service Law § 75 which she waived by entering into the agreement.
Plaintiff's second contention is that Supreme Court erroneously concluded that the parties had in fact reached a verbal settlement agreement. She claims that the parties only reached a conceptual understanding and left material terms to be negotiated at a later date. Plaintiff's claim is belied by the consistent testimony...
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