IN RE: DISTRICT COUNCIL 37 et al. (2022)

Judgment (denominated an order), Supreme Court, New York County (Arthur F. Engoron, J.), entered May 18, 2021, denying the petition seeking a declaration that respondent The New York City Department of Education (DOE) had assigned petitioner Irina Chernova to perform the duties set forth in the civil service job specification of a Bookkeeper Level II, an order directing DOE to compensate Chernova for back pay, and a declaration that respondents’ failure to render a determination on petitioners’ out-of-title complaint and appeal was arbitrary and capricious, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, and the petition granted to the extent of remanding the matter to respondents for a prompt determination of petitioners’ out-of-title complaint.

Petitioners assert that they submitted their out-of-title complaint to the director specified in the governing collective bargaining agreement (CBA) for receiving those complaints.  According to petitioners, in submitting the complaint, the title used was one that was interchangeable with that person's official title and one that had been used for previous out-of-title complaints, which had been processed.  Indeed, petitioners assert respondents had instructed them to submit out-of-title complaints to that specific director.  Although this out-of-title complaint was received, respondents did not process it, noting that petitioners had not submitted it to the DOE's Office of Labor Relations and Collective Bargaining (OLR).

Supreme Court erred in dismissing the petition for failure to exhaust administrative remedies.  The CBA is a contract and must be enforced according to the plain meaning of its terms (see Matter of Lin v. New York City Dept. of Educ., 191 A.D.3d 431, 432, 142 N.Y.S.3d 10 [1st Dept. 2021], lv denied 37 N.Y.3d 913, 2021 WL 5371139 [2021]).  Respondents did not establish that petitioners failed to comply with the filing procedures mandated by the CBA, as the CBA does not provide that petitioners were required to submit the out-of-title complaint to the OLR first.  On this record, respondents’ failure to issue a determination, based on petitioners’ initial failure to submit the complaint to the OLR, was arbitrary and capricious.

Petitioners’ notice of claim was not untimely.  Because respondents neither expressly nor constructively denied petitioners’ request for payment, the three-month period for presenting a notice of claim to a governing body of a school district was never triggered (see Education Law § 3813;  Capstone Enters. of Port Chester, Inc. v. Bd. of Educ. of Irvington Union Free Sch. Dist., 106 A.D.3d 856, 860–861, 966 N.Y.S.2d 138 [2d Dept. 2013]).