| Matter of Neumann v Wyandanch Union Free School Dist. |
| 2011 NY Slip Op 03859 [84 AD3d 816] |
| May 3, 2011 |
| Appellate Division, Second Department |
| In the Matter of Sally Neumann, Appellant, v WyandanchUnion Free School District, Respondent. |
—[*1] Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Peter J. Biging of counsel), forrespondent.
In a hybrid proceeding pursuant to CPLR article 78 and action, inter alia, to recover damagesfor breach of an employment contract, the petitioner/plaintiff appeals, as limited by her brief,from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County(Molia, J.), dated December 16, 2009, as, in effect, granted that branch of therespondent/defendant's motion which was to dismiss the third cause of action alleging breach ofcontract, and dismissed that cause of action.
Ordered that the order and judgment is reversed insofar as appealed from, on the law, withcosts, and that branch of the respondent/defendant's motion which was to dismiss the third causeof action alleging breach of contract is denied.
The petitioner/plaintiff, Sally Neumann, was hired by the respondent/defendant, WyandanchUnion Free School District (hereinafter the District), as "Director of Technology" in November2004. In September 2006, she was transferred to the position of "Assistant Superintendent forCurriculum and Technology," in which she served until September 2008, when the Districtassigned her to the position of "Assistant Director for Curriculum and Technology." Pursuant tothe collective bargaining agreement between the District and the Wyandanch AdministratorsAssociation (hereinafter the Association), Neumann's "Director" positions were eligible fortenure and represented by the Association, but the "Assistant Superintendent" position wasnontenured and excluded from Association membership.
In July 2008, Neumann entered into an employment contract with the District for her thirdyear of employment as Assistant Superintendent, which provided that the District would pay hera salary of $151,439 from July 1, 2008, through June 30, 2009. The contract also provided thatthe "terms and conditions of employment" not otherwise addressed in the contract wereincorporated from the collective bargaining agreement. Under the collective bargainingagreement, claims relating to its terms were subject to a mandatory grievance process.[*2]
In September 2008, following her assignment to the"Assistant Director for Curriculum and Technology" position, the District reduced Neumann'ssalary to $135,706. In November 2008, the District abolished Neumann's position, and no longerpaid her a salary after that date.
Thereafter, Neumann commenced this hybrid CPLR article 78 proceeding and plenary actionseeking, inter alia, a judgment declaring that she had acquired tenure by estoppel as a Director,based in part on her service in the Assistant Superintendent position, and damages based on theDistrict's alleged breach of contract when it reduced and finally ceased to pay her the salaryprovided for in the July 2008 employment agreement.
The Supreme Court dismissed the proceeding/action in its entirety based on the doctrine ofprimary jurisdiction, and directed Neumann to raise her tenure claim before the Commissioner ofEducation. On appeal, Neumann contends that the Supreme Court erred in dismissing the thirdcause of action alleging breach of contract. We agree.
"The doctrine of primary jurisdiction provides that where the courts and an administrativeagency have concurrent jurisdiction over a dispute involving issues beyond the conventionalexperience of judges . . . the court will stay its hand until the agency has applied itsexpertise to the salient questions" (Flacke v Onondaga Landfill Sys., 69 NY2d 355, 362[1987] [internal quotation marks and citations omitted]). "The doctrine . . . 'applieswhere a claim is originally cognizable in the courts, and comes into play whenever enforcementof the claim requires the resolution of issues which, under a regulatory scheme, have been placedwithin the special competence of an administrative body; in such a case the judicial process issuspended pending referral of such issues to the administrative body for its views' "(Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 156 [1988], quotingUnited States v Western Pacific R. Co., 352 US 59, 64 [1956]). However, where thedetermination does not require the special competence of an administrative agency, the doctrinedoes not apply (see Matter ofMadison-Oneida Bd. of Coop. Educ. Servs. v Mills, 4 NY3d 51, 59 [2004]; Matter of Verdon v Dutchess County Bd. ofCoop. Educ. Servs., 47 AD3d 941, 943 [2008]; Matter of Connolly v Rye School Dist., 31 AD3d 444, 446 [2006];Matter of Mandell v Board of Educ. of Syosset Cent. School Dist., 243 AD2d 479, 480[1997]).
Here, the interpretation and enforcement of Neumann's employment agreement is not withinthe Commissioner of Education's specialized knowledge and experience; instead, it depends oncommon-law contract rules that lie within the purview of the judiciary (see Matter ofConnolly v Rye School Dist., 31 AD3d at 446). Accordingly, dismissal of the third cause ofaction alleging breach of contract under the doctrine of primary jurisdiction was improper, andthe Supreme Court should have retained jurisdiction to decide that cause of action (see Matterof Verdon v Dutchess County Bd. of Coop. Educ. Servs., 47 AD3d at 943).
The District contends that the dismissal was nevertheless proper because Neumann wasrequired to exhaust her administrative remedies by submitting the matter to the grievanceprocedure mandated under the collective bargaining agreement. However, by the clear terms ofthe employment agreement and collective bargaining agreement, Association grievance remedieswere not available to Neumann with respect to the cause of action alleging breach of contract thatshe interposes here. Consequently, Neumann was entitled to seek judicial review directly, and thethird cause of action should not have been dismissed (see Matter of Bolin v Nassau County Bd. of Coop. Educ. Servs., 52AD3d 704, 707 [2008]; Matter of Sokol v Granville Cent. School Dist. Bd. of Educ.,260 AD2d 692, 693-694 [1999]; Matter of Van Tassel v County of Orange, 204 AD2d560, 561 [1994]). Rivera, J.P., Dickerson, Lott and Cohen, JJ., concur.