Opinion
July 5, 1988
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the petition is dismissed.
A collective bargaining agreement between the petitioner's union and the appellant New York City Transit Authority (hereinafter the Transit Authority) provides that employee disciplinary grievances shall be resolved by a four-step grievance procedure, the last step of which is a hearing before the contractually designated arbitrator, the appellant John Zuccotti. The agreement also provides that "[n]o transcript of the arbitration hearing shall be required". At the outset of the arbitration step of a grievance filed by the petitioner, Zuccotti ruled that, absent the consent of the Transit Authority, he would not allow stenographic transcription of the hearing, even if the petitioner were to pay for it.
The petitioner obtained an adjournment of the arbitration hearing and commenced this purported multifaceted proceeding for declaratory relief, including a declaration that he is entitled as of right to have the arbitration proceeding stenographically recorded. In response, the appellants cross-moved for dismissal of the entire petition for failure to state a claim upon which relief can be granted (cf., CPLR 3211 [a] [7]; see, CPLR 404 [a]). The Supreme Court granted the appellants' motion "except as to the use of a stenographer at the hearing, wherein Petitioner shall have the right to have the arbitration proceeding stenographically recorded at his own expense" (but see, Matter of Reale , 54 A.D.2d 1039 ; Matter of Shapiro [Gordon], 197 Misc. 241, mod 277 App. Div. 927; Matter of Andersen Trading Co. v Brimberg, 119 Misc. 784; cf., Bernhardt v. Polygraphic Co., 350 U.S. 198, 203-204, n 4).
We conclude that the Supreme Court, which did not formally convert the proceeding to an action for declaratory judgment (see, CPLR 103), erroneously entered a declaration concerning the petitioner's right to stenographically record the arbitration proceeding (cf., CPLR 3212). It should have declined to exercise jurisdiction over the claim presently at issue (see, CPLR 3001) in deference to the pending arbitration proceeding (see, Little v. Willis, 55 A.D.2d 854; cf., Matter of Silverman [Benmore Coats], 61 N.Y.2d 299; CPLR 7511 [b]). Thompson, J.P., Spatt, Sullivan and Harwood, JJ., concur.