Opinion
06348/06.
Decided October 11, 2006.
John K. Grant, Esq., John K. Grant, P.C., Newburgh, New York, Attorneys for Petitioner.
Craig L. Olivo, Esq., Bond, Schoeneck King, PLLC, Garden City, New York, Attorneys for Respondents.
The following papers numbered 1 to 29 were read on the motion of respondents the Village of Sleepy Hollow (the "Village"), Jimmy Warren as Chief of Police, and Dwight Douglas as Village Administrator ("respondents") to dismiss the proceeding pursuant to CPLR 7804(f):
FACTUAL AND PROCEDURAL BACKGROUND
This is an Article 78 proceeding in which petitioner, Robert Sturgess ("petitioner") is seeking to nullify as illegal, arbitrary and capricious (1) respondents' actions in terminating petitioner's General Municipal Law ("GML") § 207-c benefits, and/or (2) respondents' decision denying petitioner's request for GML § 207-c benefits pursuant to a letter dated December 29, 2005. From 2002 to January 11, 2006, petitioner was employed as a Police Officer for the Village of Sleepy Hollow's Police Department (the "Department"). Petitioner had previously worked as a Deputy Sheriff for Dutchess County from 1988-1989, and then as a Police Officer for the City of Poughkeepsie from 1989 until 2002.
The petition alleges that on October 1, 2004, while petitioner was working his tour of duty and performing the tasks required pursuant to his front desk assignment, petitioner slipped and fell on a wet floor and "twisted his back when he attempted to prevent himself from falling by reaching for a paper shredder" (Petition at § 13). Petitioner is alleged to have injured his shoulder and back as a result of that accident. On that same day, petitioner alleges that upon his verbal notification of the incident to his superiors, Lt. Hayes and Sgt. Eaton, petitioner was instructed to make a police blotter entry with a Narrative Report, which he did. Thereafter on October 13, 2004, petitioner went to the Village Clerk, Angela Everett, and inquired whether there was anything else petitioner "needed to do relating to his work-related injury" (Petition at ¶ 16). In response, petitioner alleges that Ms. Everett pulled out a New York State Workers' Compensation Board Report of work related accident (a "C-2 form"), asked petitioner questions concerning the injury and the incident, completed the C-2 form, and provided petitioner with a copy. Petitioner alleges that from the time of the accident until October 20, 2004, he called in each day to the Department and reported his absence as "JRI" (job-related injury) based on his experience of answering the telephone calls of other police officers who had been injured in the line of duty and who had called in their absences to the Department in this manner.
Petitioner contends that on or about November 29, 2004, Administrative Lt. Barry Campbell requested petitioner to provide him with a signed statement regarding the incident because the previous police blotter entry and Narrative Report he had filled out had not been signed. When he asked Lt. Barry if there was anything else he needed to do, Lt. Campbell advised him that he had to forward all doctors reports as he received them to the Department. According to petitioner, the Village participated in his Workers' Compensation proceeding, conceded that the back injury was work related, and throughout the period of petitioner's absence "accepted reimbursement of his salary from the NYS Insurance Fund . . . acknowledging their awareness of Petitioner's performance of duty related injury" (Petition at ¶ 22).
Petitioner alleges that throughout his period of absence, he fully cooperated with all requests from the Department insofar as he provided all his doctors' reports/notes, authorizations and other documents requested by respondents. In addition, pursuant to Chief Warren's direction, petitioner submitted to 6 IMEs from November 2004-April 2005 because he believed "each was required because of his GML Section 207-c status and the Village's continued payment of his full salary and wages" (Petition at ¶ 27). In further support of his claim that respondents continuously treated him as if he were receiving GML § 207-c benefits, petitioner claims that he was not subject to any monitoring indicative of his being treated as an absent due to illness, and respondents made no deductions to his leave accruals.
From October 22, 2004 forward, petitioner did not return to work based on the certification of his doctor, Dr. Liepman, that he was unable to work. Pursuant to a letter dated November 28, 2005, respondents notified petitioner that as a result of his having been absent for more than one year, the Village intended to terminate his employment pursuant to Civil Service Law § 71. Petitioner alleges that it was at that point that he first learned respondents' position i.e., that petitioner had not been receiving (and was not entitled to receive) GML § 207-c benefits because petitioner had failed to timely submit the application form as required by the parties' Collective Bargaining Agreement (the "Agreement"). Apparently, the Agreement requires a GML § 207-c application form to be received by the Village Administrator within fifteen (15) Village business days of the disabling injury or within fifteen (15) Village business days after the employee discovers or should have discovered the disabling injury. Upon learning of respondents' position that he had failed to apply for GML § 207-c benefits, petitioner submitted a completed GML § 207-c form to the Village Administrator on December 12, 2005 (Petition at ¶ 38). The Village Administrator responded to petitioner's application on December 29, 2005 by denying his request on the grounds that the application was untimely and that the injury was not incurred in the performance of a duty (Petition at ¶¶ 42-44).
The statute at issue in this proceeding, GML § 207-c, requires municipalities to continue paying salary and benefits to police officers who become ill or injured as a result of a line-of-duty illness or injury. Article 23 of the Agreement addresses the procedure to be followed for GML § 207-c claims. This procedure requires (1) the employee to notify the officer on duty of the incident/injury, and (2) the employee or Chief of Police or designee or a person authorized by the employee to file with the Village Administrator (within the above-referenced time limits) the GML § 207-c application. The Agreement specifies that the application is to be provided by the Village Administrator (Agreement, Article 23, § 3, Petition, Ex. L). The Village Administrator is given the discretion to excuse the time limit upon a showing of good cause.
The Agreement provides that an employee may be required to give testimony upon reasonable times and reasonable notice, submit to IMEs, sign forms permitting the disclosure of medical records to the Village, and produce all documentation pertaining to the claim of injury. The Village Administrator is charged with the initial decision of whether to grant the applicant GML § 207-c benefits and this decision is to be made within a reasonable time. Pending the decision, the employee is to be charged sick leave. In the event the Village Administrator denies the applicant GML § 207-c status, the Agreement provides that "at any time within . . . fifteen (15) Village business days of receipt of the decision, the applicant or his/her representative may serve a written demand by certified mail, return receipt requested on the Village Mayor for a hearing and further evaluation of the application. . . . Pending determination of the appeal, the employee shall continue on sick leave" (Agreement, Article 23, § 9, Petition, Ex. L). If the applicant serves the demand for a hearing, the Village Mayor and Board of Trustees must appoint a hearing officer, who is charged with conducting a hearing and "provid[ing] the applicant and the Village with a full and fair opportunity to present evidence and argument in support of their respective positions and to confront the evidence presented by the other" (Agreement, Article 23, § 10, Petition, Ex. L). The hearing officer must submit his recommendations to the Village Mayor within 30 days after hearing is concluded (including the submission of post-hearing memoranda). The Mayor must then make a final determination within 15 days of his receipt of the hearing officer's recommendations. Finally, the Agreement provides that "[t]he decision by the Village Mayor shall be subject to review only as provided by Article 78 of the CPLR" ( id.).
The provisions in the Agreement with regard to termination of GML § 207-c benefits gives the Village Administrator the discretion to notify the recipient of GML § 207-c benefits of the Village's intent to terminate the benefits if he/she has "reasonable grounds to believe that a recipient . . . is no longer or was never eligible for GML 207-c benefits" (Agreement, Article 23, § 15, Petition, Ex. L). The recipient may then file an appeal with a demand for a hearing to review the determination, and the Village Mayor and Board of Trustees must appoint a hearing officer for this purpose (Agreement, Article 23, § 16, Petition, Ex. L). The hearing officer must submit his recommendations to the Village Mayor within 30 days after the hearing is concluded (including the submission of post-hearing memoranda) ( id.). The Mayor must then make a final determination within 15 days of his receipt of the hearing officer's recommendations ( id.). Finally, the Agreement provides that "[t]he decision by the Village Mayor shall be subject to review only as provided by Article 78 of the CPLR" ( id.).
The procedure, however, specifically excludes the following GML § 207-c disputes from the Agreement's contractual grievance procedure:
"Any claim of violation, misapplication, or misinterpretation of the terms of this procedure shall not be subject to review under the contractual grievance procedure, but shall be subject to review only by judicial proceeding" (Agreement, Article 23, § 21, Petition, Ex. L).
Petitioner argues that "[t]he Village attempt to avoid it's [ sic] obligation to make payment of regular salary and wages under GML Section 207-c by simply waiting for the passage of the 1 year required under Civil Service Law Section 71 before advising Petitioner that he had not submitted the form they required is contrary to GML Section 207-c and is wholly arbitrary, capricious and contrary to law and must be annulled" (Petitioner's Memorandum of Law at 6).
He further contends that "[t]he actions of the Chief of Police and Village Administrator appear to have been intended to induce Petitioner to incorrectly believe that he was a GML Section 207-c recipient at a time he was not" (Petitioner's Memorandum of Law at 6). Not only did respondents allegedly lull petitioner into inaction, in addition, the petition asserts that respondents treated petitioner differently from the way they treated other injured police officers similarly situated since they, unlike petitioner, "were notified by Village officials, provided the forms, reminded to file the form and even told what to do to have the late filing excused" ( id.). In support of his arguments concerning the bad faith nature of respondents' actions, petitioner points to, inter alia, the Village of Sleepy Hollow Employee Handbook which advises employees to immediately report an accident to your supervisor "who will explain the procedure to follow and provide the forms to be completed" (Petition at ¶ 37) and the fact that the Agreement requires the Village Administrator to supply the form to the employee or to file the form himself on the employee's behalf (Petitioner's Memorandum of Law at 13). The petition also sets out the reason for respondents' actions i.e., immediately after petitioner's termination, the Village hired the sons of the Chief of Police and Lieutenant to fill an open vacancy and the vacancy created by petitioner's termination ( see Petitioner's Memorandum of Law at 7).
Respondents move to dismiss the petition on the grounds that petitioner has failed to exhaust his administrative remedies before seeking redress from the Court. To the extent respondents address the merits of the proceeding, respondents argue that petitioner was "absent on unlimited sick leave pursuant to Article 14, Section 1 of the Agreement, and at no time was he absent under and/or entitled to benefits pursuant to GML § 207-c" (Affirmation of Craig L. Olivo, Esq. ["Olivo Aff."] at ¶ 18). They also argue that petitioner failed to meet the deadlines required by the Agreement and, therefore, it was entirely within their discretion whether to accept petitioner's late GML § 207-c application.
In support of their motion to dismiss based on petitioner's failure to exhaust administrative remedies, respondents argue that "[b]y letter dated January 5, 2006, Petitioner's counsel appealed the Village Administrator's initial determination and demanded a hearing and further evaluation of Petitioner's Application in accordance with the collective bargained GML § 207-c procedure set forth in Article 23 of the Agreement" (Olivo Aff. at ¶ 19). While at least two days of hearings have been held, respondents argue that because the parties had "not yet completed the collectively bargained for GML § 207-c procedure and no final determination as to Petitioner's entitlement, if any, to GML § 207-c benefits has yet been rendered by the Village, Petitioner has failed to exhaust available administrative and contractual remedies and cannot now be permitted to seek redress in this Court" ( id. at ¶ 21).
In opposition, petitioner argues that respondents' exhaustion of administrative remedies "argument can only be advanced if the Respondents concede that all of the claims set forth in the Verified Petition alleging violation of Petitioner's statutory GML § 207-c rights can be raised and addressed within the context of the administrative proceeding" (Affirmation of John K. Grant, Esq. ["Grant Aff."] at § 8). To this end, petitioner points to the fact that the agreement expressly provides that "any claim of violation, misapplication, or misinterpretation of the terms of this procedure shall not be subject to review under the contractual grievance procedure, but shall be subject to review only by judicial proceeding'" (Grant Aff. at ¶ 9; Agreement, Article 23, § 21, Petition, Ex. L). Based on this provision, petitioner contends that "any delay in commencing a proceeding such as this, absent the Respondents conceding the need to complete the administrative process before raising any claims could later be argued a waiver under Section 21" (Grant Aff. at ¶ 9). Alternatively, petitioner argues that respondents' motion to dismiss "ignore[s] Petitioner's continuing independent claim that while the presentation of the form-application' may be a part of the contractual benefits agreed to by the PBA and a prerequisite to receipt of the contractual 207-c' benefits, the remedial statute conferring such benefits does not make entitlement to its benefits contingent upon compliance with a rigid form filing requirement contained in a collective bargaining agreement" ( id. at ¶ 10).
Petitioner further points out that respondents' motion to dismiss is based on their view that this proceeding is simply seeking the review of respondents' denial of GML § 207-c benefits, whereas, in actuality, petitioner is also claiming that by respondents' actions, there has been a de facto grant of GML § 207-c benefits and respondents' termination of these benefits in December 2005 without a due process hearing was in contravention of established law (Grant Aff. at ¶¶ 13-20).
In reply, respondents reiterate their arguments concerning how petitioner has demanded a hearing regarding his denial of GML § 207-c benefits "in accordance with the collectively-bargained procedure set forth in Article 23 of the collective bargaining agreement between the Village of Sleepy Hollow . . . and the Sleepy Hollow Police Benevolent Association" (Second Affirmation of Craig L. Olivo, Esq. at ¶ 2). Respondents further argue that petitioner's arguments are merely designed to muddy the waters and petitioner has failed to distinguish the cases cited in respondents' Memorandum of Law that necessitate the dismissal of this proceeding. Finally, respondents' counsel affirms that he was present during the two hearings held to date and that the same arguments petitioner raises in this proceeding are being raised before the hearing officer in the pending administrative proceeding ( id. at ¶¶ 3-5).
LEGAL DISCUSSION
Respondents' motion to dismiss this proceeding pursuant to CPLR 7804(f) is based on their contention that petitioner has failed to exhaust his administrative remedies. CPRL 7804(f) provides respondents with a vehicle to attack the proceedings from a purely legal standpoint, without interposing an answer. Because a defense based on failure to exhaust administrative remedies is a legal impediment to judicial review of an Article 78 proceeding, it is properly resolved in the context of a CPLR 7804(f) motion to dismiss ( see Matter of Hammond v. Village of Elmsford, 8 AD3d 484; see also Matter of O'Connor v. Police Commn. of Town of Clarkstown, 301 AD2d 654; Matter of Hoffman v. City of Yonkers, 231 AD2d 520; Matter of D'Onofrio v. City of Mount Vernon, 226 AD2d 719).
It is well settled that a party objecting to an administrative agency's act must exhaust available administrative remedies before seeking relief in a judicial forum ( Matter of Rissinger v. State University of New York at New Paltz, 199 AD2d 745, 746). The rationale behind the foreclosure of judicial review prior to the exhaustion of administrative remedies has been explained as follows:
"CPLR 7801 . . . provides that a determination must be final' before being subjected to CPLR article 78 review . . . [a]n agency determination becomes final and binding within the meaning of [article 78] when the petitioner seeking review has been aggrieved by it' . . . A petitioner is aggrieved once the agency has issued an unambiguously final decision that puts the petitioner on notice that all administrative appeals have been exhausted'. . . . When a final determination has not been issued and there are further administrative steps available to secure a change in result, a party must pursue them before going to court'" ( Harper v. New York State Office of Mental Health, 2006 NY Slip Op 51605 [2006] at 4 [citations omitted]).
The resolution of the instant motion to dismiss will depend upon whether the provisions found in the parties' Agreement necessitate that the parties litigate, in the first instance, the issues presented in this proceeding in the context of an administrative proceeding.
Petitioner's Argument That the Parties Could Not Negotiate the Procedures for a GML § 207-a Claim is Without Merit
Petitioner argues that there should be a distinction drawn between the parties' contractual GML § 207-c benefits and his statutory GML § 207-c benefits insofar as the parties agreed upon procedure found in the collective bargaining agreement cannot impinge upon petitioner's statutory rights ( i.e., that the statute does not make entitlement to benefits contingent upon compliance with a rigid form filing requirement). This argument is contrary to established precedent. Parties are free to stipulate away certain statutory rights and not violate public policy ( Matter of Heritage Hills Sewage Works Corp. v. Town Bd. of Town of Somers, 2006 NY Slip Op 07168 [2006]). As noted by the New York Court of Appeals, "[p]etitioner, having designated the union as his collective bargaining agent, is bound by the terms of the agreement negotiated for and made on his behalf. . . . The bargain having been struck and the parties having agreed to a procedure for the resolution of disputes involving this provision, petitioner should not now be heard to complain, having failed to avail himself of the administrative remedies outlined in the collective bargaining agreement" ( Matter of Plummer v. Klepak, 48 NY2d 486, 489, cert. denied 445 US 953).
Indeed, a very similar issue was resolved by the New York Court of Appeals in Matter of Elliott v. City of Birmingham ( 61 NY2d 920). In that case, the City of Birmingham had adopted a Fireman's and Policeman's Disability Procedure which set forth the procedure that had to be followed in order to make a claim for benefits under GML § 207-c. In that case, as in this one, if the municipality determined that an applicant was not eligible for benefits, the agreement provided that the applicant "may" demand a hearing for a redetermination of the application. In that case, the police officer had been denied disability benefits but failed to serve a demand for a hearing. When the City failed to respond to his demand for payment of GML § 207-c benefits, the police officer commenced an Article 78 proceeding. Respondents moved to dismiss the proceeding based on petitioner's failure to exhaust administrative remedies. Petitioner opposed the motion arguing, inter alia, that respondents did not have the authority to issue regulations concerning the procedure to be followed in claiming GML § 207-c benefits. The Appellate Division held that "[a]lthough the above-mentioned statute does not specifically state how an initial determination as to eligibility for benefits is to be made or who is to make it, it is apparent that it intends that such a determination shall be made initially at the municipal level . . . [and] the Mayor has the authority to promulgate and adopt the procedure governing claims for benefits under section 207-c of the General Municipal Law. . . . Contrary to petitioner's assertions, the disability procedure does not unduly restrict a policeman's right to benefits. Rather, it simply regulates, in a reasonable manner, the procedure to be followed in claiming such benefits" ( Matter of Elliott v. City of Birmingham, 94 AD2d 887, 889, affd 61 NY2d 920; see also Matter of Gamma v. Bloom, 274 AD2d 14 [parties are free to agree to submission of GML § 207-c disputes to arbitration]). The decision was affirmed by the Court of Appeals for the reasons set forth in the Appellate Division's decision.
Based on the foregoing, it is clear that contrary to petitioner's position, there can be no distinction drawn between "contractual" GML § 207-c benefits and "statutory" GML § 207-c benefits they are one in the same. Furthermore, it was entirely appropriate and not against public policy for the parties to include an agreed-upon procedure for the filing, initial determination, appeal of the initial determination, and final determination regarding an employee's application for GML § 207-c benefits.
Based on the Parties' Agreement, Petitioner is Required to Seek Review by a Hearing Officer and a Final Determination From the Village's Mayor Prior to Seeking Judicial Intervention
A review of the parties' collective bargaining agreement sets forth the procedures required to be followed with regard to the Village's initial denial of GML § 207-c benefits or the Village's termination of GML § 207-c benefits. In either case, petitioner is required to seek review by a hearing officer, who is required to provide recommendations to the Village's Mayor, who is then required to render a final decision regarding petitioner's initial or continued right to GML § 207-c benefits. Therefore, regardless of whether this Court accepts respondents' view that there has never been a grant of GML § 207-c benefits, or this Court accepts petitioner's view that there has either been a de facto grant of benefits (or that respondents are estopped by their bad acts from denying petitioner his GML § 207-c benefits based on the timeliness of his application), the fact of the matter remains that petitioner has not exhausted his administrative remedies and there has been no final determination regarding the initial grant or termination of GML § 207-c benefits. Numerous cases find that in instances such as this one, the Article 78 proceeding is premature and must be dismissed on the grounds that petitioner failed to exhaust his administrative remedies.
For example, in Matter of Gamma v. Bloom ( 274 AD2d 14), the Appellate Division, Second Department reversed a lower court's grant of a judgment in favor of petitioner in an Article 78 proceeding to review respondents' decision to terminate petitioner's GML § 207-c disability benefits. In that case, as in this one, petitioner claimed that respondents had improperly terminated his benefits before affording him a due process hearing as required under the law. Respondents moved to dismiss the proceeding on the grounds that the parties' collective bargaining agreement required that the parties submit to arbitration any dispute over GML § 207-c benefits and, therefore, petitioner had failed to exhaust his administrative remedies. Petitioner opposed the motion by arguing that the collective bargaining agreement "merely preserved . . . [petitioner's] rights under the statute and that he had the option of proceeding by way of arbitration or judicial review" ( Matter of Gamma, 274 AD2d at 16).
Although the Appellate Division recognized that an award of GML § 207-c benefits is a property right that may not be terminated without procedural due process (which includes judicial review pursuant to CPLR Article 78), the Court nevertheless held "[t]his does not mean . . . that the parties . . . are not free to agree otherwise as to the procedures to be followed in resolving disputes concerning the termination of . . . [GML] § 207-c benefits" ( id. at 16). The Court further found petitioner's argument that the collective bargaining agreement gave petitioner an option to seek arbitration or judicial review was not supported by the agreement's terms. Accordingly, the Court held that "prior to the exhaustion of the contractual remedy of arbitration, judicial relief pursuant to CPLR article 78 is not warranted" ( id. at 17; see also Matter of Hammond v. Village of Elmsford, 8 AD3d 484 [same]).
Similarly, in Matter of D'Onofrio v. City of Mount Vernon ( 226 AD2d 719), petitioner had been granted a performance of duty disability retirement and thereafter took the position that he was entitled to GML § 207-a benefits. Petitioner had apparently initiated the collectively-bargained for procedures for determining his eligibility for GML § 207-a benefits, but never completed the process before initiating his Article 78 proceeding. The Appellate Division, Second Department affirmed the lower court's granting of the motion to dismiss the proceeding since "[g]iven that the petitioner's application for General Municipal Law § 207-a(2) benefits has not yet been granted or denied by the respondent, we agree that the petitioner failed to exhaust his administrative and contractual remedies" ( Matter of D'Onofrio, 226 AD2d at 719-720; see also Matter of Putnam v. City of Watertown, 213 AD2d 974, 975 ["Supreme Court should have dismissed the petition on the ground that the City's denial of petitioner's demand is not a final determination ( see, CPLR 7801). . . . Moreover, any harm could have been ameliorated or prevented by further administrative action that petitioner could have requested").
GML § 207-a benefits are benefits awarded to firefighters for line of duty injuries or illnesses and, for the purposes of this proceeding, are indistinguishable from GML § 207-c benefits for police officers.
With regard to petitioner's argument that this proceeding was properly instituted pursuant to Article 23, § 21 of the Agreement, which provides "any claim of violation, misapplication, or misinterpretation of the terms of this procedure shall not be subject to review under the contractual grievance procedure, but shall be subject to review only by judicial proceeding," the Court cannot agree that this provision somehow trumps the intent found in the remaining provisions of Article 23 requiring that a dispute regarding petitioner's entitlement to GML § 207-c benefits follow the procedural course delineated in the parties' agreement. Instead, the provision is merely intended to exclude GML § 207-c disputes from the parties' agreed-upon procedure for the arbitration (as opposed to an administrative hearing) of all grievances, which are defined to include an employee's claim that "there has been a violation, misinterpretation or inequitable application of any of the provisions of . . . [the] Agreement" (Agreement, Article 21, § 2, Petition, Ex. L). It is not meant to foreclose the requirement of the administrative hearing and final determination by the Village Mayor with regard to entitlement to GML § 207-c benefits.
Finally, even if it could be argued that it was the parties' intent that the issue of the propriety of respondents' denial based on the timeliness of the application be excluded from the province of the hearing officer ( i.e., as an inequitable application of the Agreement's terms), the fact remains that there is at least one other basis for respondents' denial of petitioner's claim i.e., that it was not sustained in the line-of-duty. It cannot be seriously argued that the parties did not intend for that issue to be decided pursuant to the procedure delineated in Article 23 of the Agreement. Because that issue would have to be vetted at the administrative level, it would be improper to deal with petitioner's claims in such a piecemeal fashion. Furthermore, with regard to the timeliness of petitioner's application, because there has been no final determination that the application was untimely or that the time limit should be waived for good cause shown, the issue is not ripe for judicial review pursuant to CPLR 7801.
CONCLUSION
Petitioner may have valid claims that the time limit set forth in the Agreement cannot be applied to petitioner, that there has been a de facto grant of benefits based on respondents' actions, and even that petitioner is entitled to GML § 207-c benefits based on the award of Workers' Compensation benefits. Nevertheless, because these same issues are currently being argued in the pending administrative proceeding, and because the parties' Agreement expressly provides that there is no final determination by the Village with regard to a denial or termination of GML § 207-c benefits until the hearing is concluded and the Mayor issues a final determination based on the hearing officer's recommendations, this Court is duty bound to dismiss the proceeding as premature on the grounds that petitioner has failed to exhaust his administrative remedies.
Based on the foregoing, the petition is dismissed, without prejudice, to petitioner seeking further review after his exhaustion of administrative remedies ( Matter of Elliot v. City of Birmingham, 94 AD2d 887, affd 61 NY2d 920).