ARKPORT STAFF UNITED AND RONNI PORCARO IN HER CAPACITY AS PRESIDENT OF ARKPORT STAFF UNITED PLAINTIFFS RESPONDENTS v. ARKPORT CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION OF ARKPORT CENTRAL SCHOOL DISTRICT AND WILLIAM LOCKE IN HIS CAPACITY AS SUPERINTENDENT OF ARKPORT CENTRAL SCHOOL DISTRICT DEFENDANTS APPELLANTS (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Supreme Court properly denied defendants' motion to dismiss the complaint in this action seeking, inter alia, a declaration that the members of plaintiff Arkport Staff United (hereafter, Union) are entitled to longevity increases under article 27 of the collective bargaining agreement (CBA) between the Union and defendant Arkport Central School District.   Contrary to defendants' contention, the instant action is subject to the six-year statute of limitations applicable to breach of contract actions (see CPLR 213[2] ), rather than the four-month statute of limitations applicable to CPLR article 78 proceedings (see CPLR 217[1];  Nassau Ch. Civ. Serv. Empls.  Assn., Local 830, AFSCME, Local 1000, AFL-CIO v County of Nassau, 154 Misc.2d 545, 548, affd 203 A.D.2d 267;  Aloi v Board of Educ. of W. Babylon Union Free School Dist., 81 A.D.2d 874, 875).   The statute of limitations “applicable to a declaratory judgment action depends upon the nature of the substance of the underlying claim ․ Since the plaintiffs' underlying claim is an action on the contract,” i.e., the CBA, CPLR 213(2) applies (Aloi, 81 A.D.2d at 875).   The instant action was commenced within six years of the alleged breach of the CBA and thus is timely.   The court also properly determined that dismissal of the complaint was not warranted based upon plaintiffs' alleged failure to “fully utilize” the grievance procedure within the meaning of section 11.3(b) of the CBA.

Patricia L. Morgan

Clerk of the Court