IN RE: Allison NEUMANN and Civil Service Employees Association (2008)

Petitioners commenced this CPLR article 78 proceeding alleging, inter alia, that respondents violated Civil Service Law §§ 72, 80 and 81 by placing petitioner Allison Neumann on an involuntary leave of absence and by then abolishing her position and terminating her employment.   Supreme Court dismissed the petition based on the “second objection in point of law” set forth in respondents' answer, i.e., the failure of petitioners to exhaust their administrative remedies pursuant to the grievance procedures set forth in the parties' collective bargaining agreement (CBA).   We agree with petitioners that the court erred in dismissing those parts of the petition asserting claims under sections 72, 80 and 81 of the Civil Service Law inasmuch as they do not concern a grievance within the meaning of the CBA, i.e., “a dispute ․ involving the interpretation or application of any provision of [the CBA].” Those claims therefore are not subject to the CBA's grievance procedure (see Matter of Kaufmann v. Board of Educ., City School Dist. of Rochester, 275 A.D.2d 890, 714 N.Y.S.2d 923;  Matter of Moses v. Rensselaer County, 262 A.D.2d 697, 699-700, 690 N.Y.S.2d 769;  cf. Matter of Hall v. Town of Henderson, 17 A.D.3d 981, 982, 794 N.Y.S.2d 231, lv. denied 5 N.Y.3d 714, 806 N.Y.S.2d 165, 840 N.E.2d 134).   Contrary to respondents' contention, we are unable to determine the merits of those statutory claims on the record before us (see Matter of Rosenthal v. Gilroy, 208 A.D.2d 748, 749, 617 N.Y.S.2d 509;  Matter of Hartman v. Erie 1 BOCES Bd. of Educ., 204 A.D.2d 1037, 614 N.Y.S.2d 90).   Indeed, we note that respondents' submissions in opposition to those statutory claims raise triable issues of fact (see Hartman, 204 A.D.2d at 1037, 614 N.Y.S.2d 90), and that respondents failed to address all of the allegations in those statutory claims.

It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed on the law without costs and the Civil Service Law §§ 72, 80 and 81 claims are reinstated.

MEMORANDUM: