        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1017
CA 12-00234
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF GAMALIEL (TONY) DOMINGUEZ,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MONROE COUNTY SHERIFF PATRICK M. O’FLYNN,
CAPTAIN ANDREW FORSYTHE, LIEUTENANT JOHN
DIMARTINO AND DEPUTY PATRICIO ROJAS, JR.,
IN THEIR OFFICIAL CAPACITIES,
RESPONDENTS-APPELLANTS.
(APPEAL NO. 2.)


WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (BRIAN E. MARIANETTI OF
COUNSEL), FOR RESPONDENTS-APPELLANTS.

JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered November 16, 2011 in a proceeding pursuant
to CPLR article 78. The judgment, inter alia, vacated the termination
of petitioner and ordered his reinstatement.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the third and fourth
decretal paragraphs and as modified the judgment is affirmed without
costs.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
to challenge his termination from employment as a deputy in the Monroe
County Sheriff’s Office based on his violation of three departmental
rules and regulations. Following a hearing, Supreme Court granted
those parts of the petition seeking to vacate the findings of guilt
with respect to counts two and three and ordered that petitioner be
reinstated with back pay. The court affirmed the finding of guilt
with respect to count one, which alleged that petitioner engaged in
conduct unbecoming a deputy sheriff in violation of section 4.1 of the
Monroe County Sheriff’s Office Rules and Regulations, and petitioner
has not cross-appealed with respect to that charge. Petitioner
previously signed a Last Chance Agreement (Agreement) when he pleaded
guilty to prior charges of misconduct and, pursuant to the express
terms of the Agreement, any violation of, inter alia, a rule or
regulation “shall constitute just cause for his immediate
termination.” Thus, we need only determine whether the Agreement is
                                 -2-                          1017
                                                         CA 12-00234

enforceable to warrant the penalty of termination.

     We conclude that Supreme Court erred in determining that the
Agreement was unenforceable on the ground that petitioner was placed
in the “untenable position” of having to sign the Agreement or face
termination. Courts in this state have repeatedly enforced such “last
chance agreements” under the theory that a public employee may give up
rights that the employee would otherwise have under the common law,
statute or a collective bargaining agreement provided that the waiver
is “freely, knowingly and openly arrived at, without taint of coercion
or duress” (Matter of Abramovich v Board of Educ. of Cent. School
Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450, 455,
rearg denied 46 NY2d 1076, cert denied 444 US 845). As the Second
Department wrote in a similar context, “it is clear that by means of a
settlement an employee who enjoys permanent status may, if voluntarily
and knowingly done, waive statutory and contractual rights to a
hearing before dismissal, where such waiver serves as the
consideration for the curtailment of pending disciplinary proceedings”
(Whitehead v State of New York, Dept. of Mental Hygiene, 71 AD2d 653,
654, affd for reasons stated 51 NY2d 781).

     Here, although petitioner may eventually have been terminated if
he did not sign the Agreement and instead had proceeded with a
disciplinary hearing on the charges then pending against him, it does
not necessarily follow that petitioner involuntarily signed the
Agreement. Indeed, we cannot perceive how the Sheriff’s decision to
afford petitioner another chance to continue his employment with the
understanding that he would be terminated if he engaged in any future
misconduct — rather than proceeding with the scheduled disciplinary
hearing — amounts to coercion or duress.

     If petitioner found himself in the “untenable position” of having
to sign the agreement or proceed with the hearing, he was in that
position by virtue of his own misconduct and his extensive
disciplinary history, which included seven prior suspensions. Several
of the prior suspensions involved false statements made by petitioner
to his superiors during their investigations of his misconduct. It is
well settled that the “exercise or threatened exercise of a legal
right [does] not amount to duress” (C & H Engrs. v Klargester, Inc.,
262 AD2d 984, 984; see Marine Midland Bank v Hallman’s Budget
Rent-A-Car of Rochester, 204 AD2d 1007, 1008), and there is no dispute
that respondents had a legal right to seek termination of petitioner’s
employment based on the disciplinary charges that gave rise to the
Agreement.




Entered:   October 5, 2012                      Frances E. Cafarell
                                                Clerk of the Court
