Schweit v. Abate

—Order and judgment (one paper), Supreme Court, New York County (Stanley Sklar, J.), entered on or about February 4, 1993, which dismissed the petition brought pursuant to CPLR article 78, unanimously affirmed, without costs. Petitioner tendered his resignation pursuant to a negotiated plea agreement, entered into after conferring with counsel and the Administrative Law Judge. The resignation was effective, pursuant to a departmental rule, upon acceptance by the Acting Assistant Commissioner, who was authorized by the statutory appointing authority, and thus could not be withdrawn without respondent’s consent (Public Officers Law § 31 [4]). The situation is thus distinguishable from that in Matter of Wonderly v Division of N Y. State Police (80 AD2d 974), where it was conceded that petitioner attempted to withdraw his resignation before it had been approved, and that in Matter of Lanthier v Department of Transp. (183 AD2d 1083, 1085), where there was a question of fact whether the recipient of the resignation qualified as the statutory " 'appointing authority’ ”. Under the circumstances, especially in view of petitioner’s history of negotiated settlements of disciplinary charges, the refusal to permit withdrawal of his resignation was not arbitrary or capricious. Concur — Carro, J. P., Ellerin, Asch and Nardelli, JJ.