Opinion
April 8, 1996
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the cross motion is granted, and the proceeding is dismissed on the merits.
The petitioner is a bus driver for the Transit Authority who was suspended and charged with threatening his general superintendent. Pursuant to the Grievance Disciplinary Procedure set forth in the governing collective bargaining agreement, the disciplinary charge was contested by the petitioner and a hearing was scheduled before the Tripartite Arbitration Board. Before the matter was heard, the petitioner commenced this CPLR article 78 proceeding to compel his restoration to the Transit Authority's payroll pursuant to Civil Service Law § 75 (3).
Although the disciplinary procedure set forth under Civil Service Law § 75 (3) limits the period of an employee's unpaid suspension pending a hearing to 30 days, the collective bargaining agreement contains a disciplinary grievance procedure which is at variance with the statute ( cf., Dye v. New York City Tr. Auth., 88 A.D.2d 899, affd 57 N.Y.2d 917). The collective bargaining agreement further provides that the disciplinary grievance procedure "shall be in lieu of any other disciplinary procedure that may have previously applied to an employee covered by this Agreement including but not limited to the procedure specified in Sections 75 Civ. Serv. and 76 Civ. Serv. of the Civil Service Law". Thus, contrary to the conclusion reached by the Supreme Court, the petitioner's right to be restored to the payroll after 30 days of suspension is a subject governed by the collective bargaining agreement and not by Civil Service Law § 75. The petitioner's failure to exhaust the administrative remedies provided by the collective bargaining agreement precludes him from litigating this matter in a court of law ( see, Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57; Matter of Trainosky v. New York State Dept. of Taxation Fin., 105 A.D.2d 525). Mangano, P.J., Bracken, Copertino and Pizzuto, JJ., concur.