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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Stanley HALL, Petitioner-Appellant-Respondent, v. TOWN OF HENDERSON, Respondent-Respondent-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., KEHOE, MARTOCHE, SMITH, AND PINE, JJ. Satter & Andrews, LLP, Syracuse (Matthew Bergeron of Counsel), for Petitioner-Appellant-Respondent. Barth, Sullivan & Behr, LLP, Buffalo (Pierre A. Vincent of Counsel), for Respondent-Respondent-Appellant.

Petitioner, a former employee of respondent's Highway Department, commenced this CPLR article 78 proceeding seeking, inter alia, a declaration that respondent's conduct in terminating petitioner violated “Civil Service Law Section 71” and his right to due process under the Fifth Amendment of the United States Constitution, which is enforceable through 42 USC § 1983.   Specifically, petitioner contended that he was entitled to written notification and an opportunity to be heard prior to the termination (see Civil Service Law § 75[1], [2] ).   Petitioner sought reinstatement, an award of back pay and costs, and an award of attorney's fees pursuant to 42 USC § 1988.

 We agree with respondent that Supreme Court erred in granting the petition in part, and granting reinstatement and an award of back pay and costs.  “It is well settled that a contract provision in a collective bargaining agreement [CBA] may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law” (Dye v. New York City Tr. Auth., 88 A.D.2d 899, 899, 450 N.Y.S.2d 587, affd. 57 N.Y.2d 917, 456 N.Y.S.2d 760, 442 N.E.2d 1271;  see § 76[4];  Matter of Grippo v. Martin, 257 A.D.2d 952, 953, 686 N.Y.S.2d 118).   Where, as here, an employee is covered by a CBA containing a grievance procedure, and the particular dispute is governed by that procedure, the employee may not sue the employer directly but, rather, is bound to follow the grievance procedure outlined in the CBA and exhaust all administrative remedies (see Matter of Plummer v. Klepak, 48 N.Y.2d 486, 489-490, 423 N.Y.S.2d 866, 399 N.E.2d 897, cert. denied 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787;  Matter of Moses v. Rensselaer County, 262 A.D.2d 697, 699, 690 N.Y.S.2d 769;  Matter of Cantres v. Board of Educ. of City of N.Y., 145 A.D.2d 359, 360, 535 N.Y.S.2d 714).   Due process is therefore satisfied “by the inclusion of a grievance procedure in the [CBA], irrespective of whether petitioner availed [himself] of that grievance procedure” (Matter of Barrera v. Frontier Cent. School Dist., 249 A.D.2d 927, 927-928, 672 N.Y.S.2d 218).

Petitioner did not avail himself of the grievance procedure outlined in the CBA and therefore failed to exhaust his administrative remedies.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is dismissed.