IN RE: Steven PRESTI (2005)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Steven PRESTI, Petitioner-Appellant, v. Kevin FARRELL, as Commissioner of the Department of Sanitation of the City of New York, Respondent-Respondent.

Decided: November 10, 2005

BUCKLEY, P.J., TOM, ANDRIAS, SULLIVAN, MALONE, JJ.

Perry S. Reich, West Babylon, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondent.

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 proceeding 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 A.D.2d 402, 538 N.Y.S.2d 2 [1989] ). In any event, petitioner's chain of custody argument concerning his drug test is without merit.

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