Opinion
April 1, 1999
Appeal from a judgment of the Supreme Court (Dier, J.), entered April 20, 1998 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition for failure to exhaust administrative remedies.
James R. Sandner (Timothy S. Taylor of counsel), Albany, for appellant.
Judge Duffy (Monica Duffy of counsel), Glens Falls, for respondent.
Before: MIKOLL, J.P., MERCURE, CREW III, PETERS and CARPINELLO, JJ.
MEMORANDUM AND ORDER
On October 6, 1997, petitioner was appointed as a noninstructional substitute teaching assistant/monitor by respondent and served in this capacity until his appointment was discontinued on January 7, 1998. After filing a written notice of claim against respondent in early January 1998, petitioner commenced this proceeding on February 4, 1998 seeking to annul respondent's appointment of him as a substitute teaching assistant and to order his immediate appointment as a probationary teaching assistant retroactive to October 6, 1997.
Concurrent with these proceedings, on October 23, 1997 the Granville Central School Support Staff Association (hereinafter the Association), as the recognized bargaining unit for noninstructional employees of the District, filed a grievance with respondent claiming a violation of their collective bargaining agreement. Specifically, the grievance challenged respondent's appointment of substitute teaching assistants and sought to require respondent to post for the four teaching assistant vacancies, to conduct candidate interviews and to make immediate permanent appointments. This grievance had unsuccessfully proceeded to the third stage of a four stage procedure when petitioner commenced the instant proceeding.
Rather than answer, respondent moved to dismiss the petition claiming that petitioner had failed to exhaust his administrative remedies because a final determination had not been rendered in connection with the grievance and because petitioner did not appeal his claims to the Commissioner of Education pursuant to Education Law § 310. Supreme Court granted the motion finding that "[p]etitioner is presently proceeding within the grievance procedure established by the collective bargaining agreement" and that the instant proceeding was "a duplication of the grievance proceedings". This appeal ensued.
We must agree with petitioner's claim that the pendency of the Association's grievance alleging violations of the collective bargaining agreement does not constitute an absolute bar to this proceeding. First, we find no record support for Supreme Court's finding that petitioner was proceeding under the grievance procedure. As the grievance itself recites, petitioner is not member of the Association (compare, Matter of Rissinger v. State Univ. of N.Y. at New Paltz, 199 A.D.2d 745) and there is no indication in the record that petitioner participated in the filing of the grievance, that he requested that it be filed on his behalf or that he actively participated in its prosecution.
Further, there is also no proof in the record that the Association was representing petitioner's interests in filing the grievance. While the grievance concededly challenges respondent's filling of four alleged teaching assistant vacancies and notes that such positions were then held by four individuals hired as substitutes (including petitioner), it does not seek as its desired settlement that petitioner be interviewed as a candidate or that petitioner be immediately appointed to a permanent position (compare, Matter of Board of Educ. of Enlarged City School Dist. of City of Auburn [Auburn Teachers Assn.], 49 A.D.2d 35, lv. denied 38 N.Y.2d 740). Thus, petitioner persuasively argues that even if the Association is ultimately successful, there is no guarantee that he personally would benefit from the victory.
Finally, petitioner is asserting violations of the Education Law and corresponding regulations — not provisions of the collective bargaining agreement — as the basis for his petition (compare, Matter of Board of Educ., Commack Union Free School Dist. v. Ambach, 70 N.Y.2d 501, cert denied 485 U.S. 1034; see, Matter of Susquehanna Val. Teachers Assn. [Board of Educ. of Susquehanna Val. Cent. School Dist.], 75 A.D.2d 140, affd 52 N.Y.2d 1034). Since "the grounds urged for relief" and remedies sought in each forum are separate and distinct (Matter of City School Dist. of City of Poughkeepsie [Poughkeepsie Pub. School Teachers Assn.], 35 N.Y.2d 599, 606), there was no failure to exhaust administrative remedies by petitioner with respect to the grievance procedure (see generally, Matter of England v. Commissioner of Educ. of State of N Y, 169 A.D.2d 868, lv. dismissed in part, lv. denied in part 77 N.Y.2d 956; cf., Matter of Board of Educ., Commack Union Free School Dist. v. Ambach, supra; Matter of Sargent v. Board of Coop. Educ. Servs., First Supervisory Dist. of Monroe County, 149 A.D.2d 921, 922).
Nor was petitioner required to exhaust his administrative remedies with an appeal to the Commissioner of Education pursuant to Education Law § 310. Because he has alleged violations of his statutory rights, direct resort to the courts was permissible (see, Matter of Cohn v. Board of Educ. of Hammondsport Cent. School, 58 A.D.2d 977, 978; Matter of Lezette v. Board of Educ., Hudson City School Dist., 43 A.D.2d 755, 755-756, mod on other grounds 35 N.Y.2d 272, 277-278; see also, Matter of Cady v. Clark, 176 A.D.2d 1055, 1056) for a determination on the merits as to whether petitioner was appointed to a vacant tenured position or whether he was legally hired on a temporary basis as a true substitute.
Mikoll, J.P., Mercure, Crew III and Peters, JJ., concur.
ORDERED that the judgment is reversed, on the law, without costs, motion denied and respondent is directed to file an answer within 20 days of the date of this court's decision.