That does not mean that the City Council could totally ignore the statutory tests; it means, rather, that the scope of judicial review is necessarily narrow. In any event, although CPLR article 78 may not afford the relief which the petitioner seeks, the question whether Farbstein properly meets the statutory standard, and the second question which is also presented by the petition — the legality of the contract — are properly within the purview of an action for a declaratory judgment (see Boryszewski v Brydges, 37 N.Y.2d 361, 365; Matter of Rapp v Onondaga Community Coll., 45 A.D.2d 922, 923). Under these circumstances, we think that the proceeding should be converted to an action for a declaratory judgment and the allegations considered on the merits.
The arbitration clause in this agreement does not prohibit court proceedings and really does no more than grant a unilateral option to the employee to submit his case to arbitration if he is unsatisfied with the results of preliminary grievance proceedings. We, therefore, remit the matter to Supreme Court for a plenary trial to construe the terms of the agreement and determine the rights of the parties under it (see Matter of Rapp v Onondaga Community Coll., 45 A.D.2d 922). Judgment should be entered declaring the contract valid and the matter should be remitted to Trial Term, Monroe County, for determination of petitioners' rights under it.
In Matter of Rapp v Onondaga Community Coll. ( 45 A.D.2d 922), the same court in the same year reached a conclusion that the dismissal by Special Term of a mandamus proceeding was within the discretion of the Trial Justice. However, the Appellate Division, Fourth Department, held Per Curiam that inasmuch as all necessary parties were before the court, the trial court (p 923) "erred in failing to treat the proceeding as an action as provided in CPLR 103 (subd. [c])".