| Matter of Murray v Downey |
| 2008 NY Slip Op 01763 [48 AD3d 817] |
| February 26, 2008 |
| Appellate Division, Second Department |
| In the Matter of Joseph Murray et al., Appellants, v BrianDowney et al., Respondents. |
—[*1] Bond, Schoeneck & King, PLLC, Garden City, N.Y. (Howard M. Miller and Terry O'Neil ofcounsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Chief of Policeof the Village of Bronxville dated February 17, 2006, which docked the pay of the petitionerJoseph Murray for one day for an unauthorized use of sick leave, the petitioners appeal from anorder and judgment (one paper) of the Supreme Court, Westchester County (Cacace, J.), enteredNovember 3, 2006, which granted the respondents' motion to dismiss the petition for thepetitioners' failure to exhaust administrative remedies, and dismissed the proceeding.
Ordered that the order and judgment is affirmed, with costs.
Pursuant to the collective bargaining agreement between the Village of Bronxville and thepetitioner Bronxville Police Taylor Act Committee (hereinafter the Committee), the Committeefiled a grievance with respect to a determination that the petitioner Joseph Murray was notauthorized to use sick leave on May 30, 2005. The petitioners complied with the first three stepsof the grievance procedure by filing the grievance successively with the Village Chief of Police,the Village Administrator, and the Village Board of Trustees. After the grievance was denied bythe Village Board of Trustees, the petitioners declined to take the final step of the grievanceprocedure required by the collective bargaining agreement, which involves submission of thegrievance to arbitration. Rather, the petitioners instituted this proceeding pursuant to CPLRarticle 78.[*2]
"It is hornbook law that one who objects to the act of anadministrative agency must exhaust available administrative remedies before being permitted tolitigate in a court of law" (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57[1978]; see Matter of Laureiro v New York City Dept. of Consumer Affairs, 41 AD3d717 [2007]; Matter of Dorme v Slingerland, 41 AD3d 596 [2007]). The petitioners failedto exhaust an available administrative remedy and failed to establish that an exception to theexhaustion of administrative remedies doctrine was applicable (see Watergate II Apts. vBuffalo Sewer Auth., 46 NY2d 52 [1978]; Matter of Brunjes v Nocella, 40 AD3d1088 [2007]; Matter of Podolsky v Daniels, 21 AD3d 559 [2005]). Accordingly, theSupreme Court properly granted the respondents' motion to dismiss the petition for thepetitioners' failure to exhaust their administrative remedies (see Matter of Ireh v Nassau Univ.Med. Ctr., 33 AD3d 702 [2006]).
There is no merit to the petitioners' assertion that they were not required to exhaust theiradministrative remedies prior to seeking judicial relief, because by docking Murray's pay for oneday, the Village Chief of Police imposed a form of "discipline," and thus triggered a right toimmediate review. Spolzino, J.P., Santucci, Angiolillo and Balkin, JJ., concur.