Opinion
1162/06.
Decided October 4, 2006.
Law Offices of Richard M. Greenspan, PC, Attn: Eric J. LaRufa, Esq., Elmsford, NY, Attorneys for Petitioner.
Rutherford Christie, LLP, Attn: Julie A. Rivera, Esq., Lewis R. Silverman, Esq., New York, NY, Attorneys for Respondents.
The court sua sponte vacates its short form order dated September 14, 2006 and re-issues same in its entirety as modified below to correct the second sentence of the third full paragraph where the year in which petitioner's statutory rights were allegedly violated was incorrectly stated as 2000 instead of 2005.
Petitioner brings this CPLR Article 78 proceeding seeking a judgment (1) declaring that respondents' alleged action against petitioner constituted a violation of New York Civil Service Law [CSL] § 75, (2) enjoining respondents from engaging in such conduct in the future, (3) ordering reinstatement of petitioner "with full back pay and all other emoluments of employment which he would have received if not wrongfully terminated, including holiday, personal, vacation and bereavement leave, together with interest thereon from the date of Lynch's termination to the actual date of reinstatement, at a rate of 9% interest thereon", (4) awarding compensatory damages in the sum of $10,000.00, and (5) awarding reasonable attorney's fees, costs and disbursements.
Respondents move for an order pursuant to CPLR §§ 3211(a)(7) and 7804(f) to dismiss the within proceeding on the grounds that the petition fails to state a cause of action and petitioner failed to exhaust his administrative remedies.
Petitioner is a school bus driver and part time security aide employed by respondents. He brings this Article 78 proceeding contending that his statutory rights under CSL § 75 were violated when in or after July, 2005 he suffered "de facto termination" as a security aide due to respondents' refusal since then to schedule him for his usual and customary security aide hours (see petition at ¶¶ 8 and 11). In addition, petitioner contends that respondents "failed to compensate [him] for his holiday, sick, personal and bereavement leave, all of which he is entitled to pursuant to the parties collective bargaining agreement" (petition at ¶ 12).
On a motion pursuant to CPLR § 3211 the pleading is to be afforded every favorable inference and the court must determine whether the allegations fit within any cognizable legal theory ( Leon v. Martinez, 84 NY2d 83, 87; Bernberg v. Health Management Systems, Inc., 303 AD2d 348). On a motion pursuant to CPLR § 3211(a)(7) the court must further accept as true any facts alleged in the petition and any submission in opposition to the dismissal motion ( 511 W232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152).
Insofar as is relevant, CSL § 75 applies to persons "in the public school service . . . who was honorably discharged or released under honorable circumstances from the armed forces of the United Stated having served therein as such member in time of war". . . . The statute provides that such persons "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after hearing upon stated charges pursuant to this section".
In moving to dismiss for failure to state a cause of action, respondents do not dispute petitioner's honorable discharge from the military. Rather, they contend that petitioner's allegations constitute neither "de facto termination" nor any other disciplinary penalty so as to trigger the requirement for formal written charges and a hearing.
In order to state a cause of action under CSL § 75, petitioner need only make sufficient allegations of some demotion or disciplinary action in the absence of the procedural protections of the statute ( Matter of Bailey v. Susquehanna Valley Central School District Bd. of Ed., 276 AD2d 963). A "diminution in benefits" occasioned by a reassignment is sufficient to qualify as a disciplinary action so as to require compliance with CSL § 75 ( Id.).
Thus, petitioner's allegations that since July, 2005 respondents have effectively prevented him from obtaining any of the hours he formerly enjoyed on the work schedule for security aides adequately states a cause of action under CSL § 75.
Dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action is accordingly denied.
Respondents' additional contention that dismissal is warranted as petitioner failed to exhaust his administrative remedies is denied to the extent petitioner seeks merely to enforce his statutory rights under CSL § 75 but granted to the extent he seeks relief stemming from his collective bargaining agreement.
Petitioner's collective bargaining agreement [CBA] with respondents includes a grievance procedure and defines grievances at Article VI as follows:
Grievance shall mean any claimed violation, misinterpretation or inequitable application of any written work rules and policies affecting the terms and conditions of employment or this agreement. . . . Among the areas that may be dealt with by these grievance procedures should be work assignments, [and] working hours,. . . . The term "grievance" shall not include any matter which is otherwise reviewable pursuant to law or any rule or regulation having the force or effect of law.
Given the exemption from grievance procedure for those matters otherwise reviewable pursuant to law here CSL § 75 the provisions of the CBA and CSL § 75 are readily "harmonized" (see, Matter of Stoker v. Tarentino, 64 NY2d 994, 996).
Insofar as the petitioner seeks "to vindicate a statutory right under Civil Service Law § 75 which was . . . preserved in the collective bargaining agreement", he may pursue the within Article 78 proceeding without first utilizing the collective bargaining agreement's grievance procedure ( Matter of Dombroski v. Bloom, 170 AD2d 805, 807). However, insofar as petitioner seeks relief beyond that afforded under CSL § 75, he must first avail himself of the grievance procedure provided by the CBA ( Matter of Plummer v. Klepak, 48 NY2d 486, cert. denied 445 US 952; Hammond v. Elmsford, 8 AD3d 848; Matter of O'Connor v. Police Comm. Of Town of Clarkstown, 301 AD2d 654; cf. Matter of Dombroski v. Bloom, supra).
Back pay and benefits may be recovered if petitioner is successful (see, e.g., CSL § 77; Matter of Feda v. Carroll, 25 AD3d 697) but attorney's fees and vague claims for other compensatory damages are not (see CPLR 7804; Corde v. Aiello, 204 AD2d 1029).
Respondents shall serve their answer within 10 days of receipt of a copy of this order from any source after which either party may re-notice the petition pursuant to CPLR 7804(f). To insure that this matter does not languish, counsel for the parties are directed to appear before the undersigned on October 30, 2006 at 9:30 A.M. for a status conference unless the petition has been formally re-noticed. No appearance is necessary on October 30, 2006 if prior thereto the petition has been re-noticed.
This decision constitutes the order of the court.