Matter of Britt v City of New York
Decided on January 24, 2013
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.
Tom, J.P., Saxe, Moskowitz, Abdus-Salaam, Gische, JJ.
Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered January 19, 2012, denying the petition seeking, among other things, to annul respondents' determination, effective on or about February 2, 2011, which terminated petitioner's probationary employment and declined to reinstate him to his prior permanent position, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a hearing on the issue of whether petitioner effectively resigned from his permanent position.
Since petitioner passed an open competitive examination for his position as Computer Science Technician (CST), Level II, from which he was terminated during the probationary period, he would not be entitled to reinstatement in his prior, permanent position of Computer Aide if he voluntarily accepted his appointment to the CST position, which would constitute an effective resignation from his prior, permanent position (see Matter of Bethel v McGrath-McKechnie, 95 NY2d 7 ). However, in light of the conflicting accounts of petitioner's appointment to the probationary position, there is a triable issue of fact as to whether he voluntarily accepted the appointment to the subsequent, probationary position, and we remand accordingly (see CPLR 7804[h]; see also Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 844 [1st Dept 2005]).
We have considered petitioner's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 24, 2013
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