Matter of DeVito v Department of Educ. of the City of New York

Matter of DeVito v Department of Educ. of the City of New York 2013 NY Slip Op 08022 Decided on December 3, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2013
Andrias, J.P., Acosta, Moskowitz, Richter, Manzanet-Daniels, JJ.
11222 107636/11

[*1]In re Camila Ann DeVito, Petitioner-Appellant, The

v

Department of Education of the City of New York, et al., Respondents-Respondents.




Law Offices of Stewart Lee Karlin, P.C., New York (Stewart L.
Karlin of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Dona B.
Morris of counsel), for respondents.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered August 9, 2012, which denied the petition seeking to, inter alia, annul respondents' determination, dated February 14, 2011, terminating petitioner's employment, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

As a probationary employee, petitioner was subject to termination "at any time and for any reason, unless [she] establishe[d] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith" (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). Petitioner has not met her burden (see Matter of Witherspoon v Horn, 19 AD3d 250 [1st Dept 2005]).

The fact that respondent Department of Education's determination to terminate petitioner's employment occurred after the effective date of her resignation does not render it one made in "bad faith." Pursuant to Chancellor's Regulation C-205, ¶26, despite her resignation, there was still a possibility that petitioner could return to work in the future, and thus the resignation was not irrevocable (see e.g. Matter of Folta v Sobol, 210 AD2d 857 [3d Dept 1994]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2013

CLERK