IN RE: Application of Louis OTERO (1999)

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

IN RE: Application of Louis OTERO, Petitioner-Appellant, For a Judgment, etc., v. Howard SAFIR, as Police Commissioner of the City of New York, et al., Respondents-Respondents.

Decided: February 09, 1999

WILLIAMS, J.P., WALLACH, TOM and MAZZARELLI, JJ.

Peter D. Coddington, for Petitioner-Appellant. George Gutwirth, for Respondents-Respondents.

Order, Supreme Court, New York County (Walter Tolub, J.), entered July 18, 1997, which granted respondents' cross motion to dismiss the petition, brought pursuant to CPLR article 78, seeking a direction reinstating petitioner as a police officer, unanimously affirmed, without costs.

Petitioner, having been charged with offenses arising from the same incident in both departmental and criminal proceedings, elected to resign rather than provide testimony at his departmental trial. Petitioner's resignation, having been strategically motivated and not the result of fraud, overreaching or other misconduct on respondents' part, was not improperly obtained and, accordingly, may not be judicially countermanded (see, Matter of Cacchioli v. Hoberman, 31 N.Y.2d 287, 338 N.Y.S.2d 865, 291 N.E.2d 117).

MEMORANDUM DECISION.

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