IN RE: Monica ALBALA

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

IN RE: Monica ALBALA, et al., appellants, v. COUNTY OF NASSAU, et al., respondents-respondents, New York State Department of Civil Service, respondent.

Decided: March 27, 2000

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, THOMAS R. SULLIVAN and NANCY E. SMITH, JJ. Louis D. Stober, Jr., LLC, Garden City, N.Y. (Stephen G. Walko of counsel), for appellants. Richard S. Leffer, Chief Deputy County Attorney, Mineola, N.Y. (Tara Talmadge of counsel), for respondents-respondents. Eliot L. Spitzer, Attorney-General, New York, N.Y. (Thomas B. Litsky of counsel), for respondent New York State Department of Civil Service (no brief filed).

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Nassau County Office of Labor Relations dated April 3, 1998, which, after a hearing, denied the petitioners' request to administer a new promotional examination for the position of Museum Curator II, and an action, in effect, to recover damages for breach of contract, the petitioners appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Schmidt, J.), dated November 17, 1998, as dismissed the action and proceeding insofar as asserted against the respondents Nassau County and Nassau County Civil Service Commission.

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

 The determination of the Nassau County Office of Labor Relations was not arbitrary or capricious since it was rationally based on the facts before it (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321).   Further, the petitioners may not maintain an action to recover damages for breach of contract.   The individual members of the Civil Service Employees Association (hereinafter CSEA) lack the capacity to maintain a lawsuit.   A union member has no individual rights under a collective bargaining agreement which he or she can enforce against his employer (see, Berlyn v. Board of Educ. of East Meadow Union Free School Dist., 80 A.D.2d 572, 435 N.Y.S.2d 793, affd. 55 N.Y.2d 912, 449 N.Y.S.2d 30, 433 N.E.2d 1278;  see, e.g., Matter of Soto, 7 N.Y.2d 397, 198 N.Y.S.2d 282, 165 N.E.2d 855).   Moreover, failure of the CSEA to avail itself of the remedy provided by the collective bargaining agreement precludes judicial review under the rule which requires the exhaustion of administrative remedies (see, Aloi v. Board of Educ. of West Babylon Union Free School Dist., 81 A.D.2d 874, 439 N.Y.S.2d 169;  Lewis v. Macchiarola, 73 A.D.2d 663, 423 N.Y.S.2d 200, affd. 53 N.Y.2d 629, 438 N.Y.S.2d 780, 420 N.E.2d 972).

MEMORANDUM BY THE COURT.

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