SHERIDAN v. TOWN OF ORANGETOWN (2005)

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (O'Rourke, J.), dated April 9, 2004, as, in effect, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Roth v. Goldman, 254 A.D.2d 405, 679 N.Y.S.2d 92).   Here, the plaintiff, a retired police officer who previously was employed by the defendant, commenced this action following the defendant's termination of certain benefits.   The documentary evidence established, however, that the plaintiff's claim was governed by a collective bargaining agreement and he failed to pursue the grievance procedure contained therein and exhaust his administrative remedies (see Manfro v. McGivney, 11 A.D.3d 662, 783 N.Y.S.2d 288;  Matter of O'Connor v. Police Commission of Town of Clarkstown, 301 A.D.2d 654, 753 N.Y.S.2d 885;  Formica v. Town of Huntington, 295 A.D.2d 400, 743 N.Y.S.2d 298).   Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.