Opinion
2003-03272.
Decided June 28, 2004.
In an action, inter alia, to recover damages for breach of a collective bargaining agreement, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, J.), dated March 18, 2003, which granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.
Louis D. Stober, Jr., LLC, Garden City, N.Y. (Stephen G. Walko of counsel), for appellants.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (Joady Benjamin Feiner of counsel), for respondent.
Before: ANITA R. FLORIO, J.P. DANIEL F. LUCIANO, SANDRA L. TOWNES, STEVEN W. FISHER, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the first cause of action and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
Viewing the complaint in the light most favorable to the plaintiffs and accepting the factual allegations as true, the complaint states a cause of action to recover damages for a breach of the parties' collective bargaining agreement ( see Board of Educ. of City School Dist. of City of New Rochelle v. County of Westchester, 282 A.D.2d 561; Rotanelli v. Madden, 172 A.D.2d 815; see also Matter of Andriola v. Ortiz, 82 N.Y.2d 320, cert denied sub nom Andriola v. Antinoro, 511 U.S. 1031; Matter of Civil Serv. Empls. Assn. Local 1000, AFSCME, v. New York State Pub. Empl. Relations Bd., 2 A.D.3d 1197; Jackson v. Nassau County, 245 A.D.2d 264).
The second cause of action, however, was properly dismissed. The defendant's rejection of the arbitrator's advisory award was permissible pursuant to the collective bargaining agreement ( see Benjamin Rush Empls. United v. McCarthy, 76 N.Y.2d 781; Matter of Plainedge Federation of Teachers v. Plainedge Union Free School Dist., 58 N.Y.2d 902). Contrary to the plaintiffs' contention, the application of an arbitrary and capricious standard is inappropriate under these circumstances ( see Matter of O'Brien v. Board of Educ. of City School District of City of N.Y., 71 A.D.2d 605).
FLORIO, J.P., LUCIANO, TOWNES and FISHER, JJ., concur.