| Matter of Amorosano-LePore v Grant |
| 2008 NY Slip Op 09073 [56 AD3d 663] |
| November 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Gina Amorosano-LePore,Appellant, v Anthony J. Grant et al., Respondents, and City of New Rochelle et al.,Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Peter Meisels ofcounsel), for respondents-respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondentsCity of New Rochelle, City Manager of the City of New Rochelle, Civil Service Administrator ofthe City of New Rochelle, and Personnel Director of the City of New Rochelle, dated August 2,2006, which adopted the findings of the respondent hearing officer Anthony J. Grant, made aftera hearing, that the petitioner was guilty of the disciplinary charges against her, and terminated heremployment with the respondent City of New Rochelle, the petitioner appeals from so much ofan order and judgment (one paper) of the Supreme Court, Westchester County (Adler, J.), enteredJuly 17, 2007, as granted the motion of the respondents City of New Rochelle, City Manager ofthe City of New Rochelle, Civil Service Administrator of the City of New Rochelle, andPersonnel Director of the City of New Rochelle, to dismiss the petition insofar as asserted againstthem for failure to exhaust administrative remedies, and dismissed the proceeding insofar asasserted against those respondents.
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
The petitioner Gina Amorosano-LePore commenced this CPLR article 78 proceeding toreview a determination of the respondents City of New Rochelle, City Manager of the City ofNew Rochelle, Civil Service Administrator of the City of New Rochelle, and Personnel Directorof the City of New Rochelle (hereinafter collectively the City) to terminate her employment.[*2]
In lieu of an answer, the City moved pursuant to CPLR7804 (f) to dismiss the petition on the ground that, among other things, the petitioner failed toexhaust her administrative remedies under the collective bargaining agreement (hereinafter theCBA) between the City and the Civil Service Employee's Association (hereinafter the CSEA).The Supreme Court granted the City's motion to dismiss the petition insofar as asserted againstthe City on that basis. We affirm.
Contrary to the petitioner's contention, the Supreme Court properly considered the CBA indetermining that documentary evidence conclusively established a defense as a matter of law, asthe petitioner failed to avail herself of the available administrative remedies provided in the CBA(see Matter of Coleman v Town of Eastchester, 39 AD3d 855 [2007]; Matter ofHammond v Village of Elmsford, 8 AD3d 484, 485 [2004]; Matter of Muzzillo v MountVernon City School Dist., 238 AD2d 424 [1997]; accord Leon v Martinez, 84 NY2d83, 88 [1994]; Meyer v Guinta, 262 AD2d 463, 464 [1999]).
None of the claimed exceptions to the rule requiring the exhaustion of administrativeremedies is applicable. The petitioner's contention that the officials acted beyond the scope oftheir authority directly related to the interpretation, application, and enforcement provisions ofthe CBA and was reviewable under articles XI and XII of the CBA (see Board of Educ. ofLakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311, 314 [1980]; Matter ofCounty of Putnam v Putnam County Sheriff's Benevolent Assn., Inc., 24 AD3d 546, 547[2005]; Matter of Elliott v Arlington Cent. School Dist., 143 AD2d 662, 663 [1988]).
The petitioner's contention that she was deprived of due process by the identity and conductof the hearing officer also could have been addressed through administrative review by anarbitrator chosen by both the employer and the petitioner's union as provided for in articles XIand XII of the CBA (see Matter of Warder v Board of Regents of Univ. of State of N.Y.,53 NY2d 186, 197 [1981], cert denied 454 US 1125 [1981]; Matter of Tasadfoy vTown of Wappinger, 22 AD3d 592 [2005]; Matter of Levine v Board of Educ. of City ofN.Y., 186 AD2d 743, 744 [1992]).
The petitioner failed to demonstrate that she was prevented from availing herself of theremedial provisions of the CBA to the extent that it would have rendered the pursuit of suchremedies futile, and thus excuse her failure to exhaust those remedies (see Matter of Brown vCounty of Nassau, 288 AD2d 216, 217 [2001]; Matter of Elliott v Arlington Cent. SchoolDist., 143 AD2d at 663).
The petitioner's remaining contentions are without merit. Mastro, J.P., Rivera, Covello andLeventhal, JJ., concur.