Matter of Steven Presti v Kevin Farrell

Matter of Presti v Farrell 2005 NY Slip Op 08608 [23 AD3d 211] November 10, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

In the Matter of Steven Presti, Appellant,
v
Kevin Farrell, as Commissioner of the Department of Sanitation of the City of New York, Respondent.

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Judgment (denominated an order), Supreme Court, New York County (James A. Yates, J.), entered November 1, 2002, which denied the petition brought pursuant to CPLR article 78 seeking to annul respondent's acceptance of petitioner's advance resignation pursuant to a last chance agreement, unanimously affirmed, without costs.

After petitioner tested positive for drugs for a third time, respondent properly accepted petitioner's resignation from his position as a sanitation worker pursuant to a last chance agreement that he had signed at a prior disciplinary proceeding, and that had provided for automatic resignation upon any subsequent positive test. In the agreement, petitioner, in lieu of termination, knowingly relinquished the right to appeal or otherwise challenge the test results or testing procedures (see Montiel v Kiley, 147 AD2d 402 [1989]). In any event, petitioner's chain of custody argument concerning his drug test is without merit. Concur—Buckley, P.J., Tom, Andrias, Sullivan and Malone, JJ.