| Matter of Alden Cent. Sch. Dist. (Alden Cent. Schs.Administrators' Assn.) |
| 2014 NY Slip Op 02185 [115 AD3d 1340] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| In the Matter of Arbitration Between Alden Central SchoolDistrict, Appellant, and Alden Central Schools Administrators' Association,Respondent. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (Joseph L. Guza of counsel), forrespondent-respondent.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.),entered February 1, 2013. The order, insofar as appealed from, denied the petition for astay of arbitration and granted that part of the cross petition seeking to compelarbitration.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law without costs, the petition is granted and the cross petition is denied in itsentirety.
Memorandum: Petitioner commenced this proceeding seeking a stay of arbitrationpursuant to CPLR 7503, and respondent cross-petitioned to compel arbitration of itsgrievance and for other relief. Supreme Court denied the petition and granted that part ofthe cross petition seeking to compel arbitration. We reverse the order insofar as appealedfrom. The grievance in this case was filed by respondent on behalf of a member whoseposition as principal of an elementary school was abolished. The member was placed onthe Preferred Eligibility List and then hired, at a lower salary, as an assistant principal ofa middle school. Respondent filed a grievance on behalf of its member, contending thather new position is sufficiently "similar" within the meaning of Education Law §2510 (3) (a) such that she is entitled to the same level of pay. After petitioner denied thegrievance, respondent demanded arbitration under the parties' collective bargainingagreement (CBA). Petitioner then commenced this proceeding.
It is well settled that, in deciding an application to stay or compel arbitration underCPLR 7503, the court is concerned only with the threshold determination of arbitrability,and not with the merits of the underlying claim (see CPLR 7501; Matter ofBoard of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d132, 142-143 [1999]). In making the threshold determination of arbitrability, the courtapplies a two-part test. It first determines whether "there is any statutory, constitutional orpublic policy prohibition against arbitration of the grievance" (Matter of City ofJohnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). "If noprohibition exists,[the court then determines] whether the parties in fact agreed toarbitrate the particular dispute by examining their collective bargaining agreement"(Matter of County of [*2]Chautauqua v Civil Serv.Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit6300, Chautauqua County Local 807, 8 NY3d 513, 519 [2007]; see Matter of Mariano v Town ofOrchard Park, 92 AD3d 1232, 1233 [2012]).
Here, we agree with petitioner that the Commissioner of Education has primaryjurisdiction over the parties' dispute, and that arbitration is therefore prohibited by publicpolicy. As we have previously noted, " 'the Commissioner of Education has thespecialized knowledge and expertise to resolve the factual issue of whether the. . . former position and the new position are similar within the meaning ofEducation Law § [2510 (3) (a)]' " (Matter of DiTanna v Board of Educ. ofEllicottville Cent. School Dist., 292 AD2d 772, 773 [2002], lv denied 98NY2d 605 [2002]; see Matter of Donato v Board of Educ. of Plainview, OldBethpage Cent. School Dist., 286 AD2d 388, 388 [2001]). Based on his or herspecialized knowledge and expertise, the Commissioner of Education should "resolve, inthe first instance," the issue of fact whether two positions are sufficiently similar underEducation Law § 2510 (Matter of Ferencik v Board of Educ. of Amityville Union FreeSchool Dist., 69 AD3d 938, 938 [2010]; see Matter of Moraitis v Board of Educ. Deer Park Union FreeSchool Dist., 84 AD3d 1090, 1091 [2011]; Matter of Hessney v Board ofEduc. of Pub. Schools of Tarrytowns, 228 AD2d 954, 955 [1996], lv denied89 NY2d 801 [1996]). Respondent's reliance on Board of Educ. of PortvilleCent. School v Portville Faculty Assn. (96 AD2d 739 [1983]) is misplaced,inasmuch as the dispute in that case involved an employee's right to tenure, and notwhether two positions are similar in nature and duties.
In light of our determination, we need not address petitioner's additional contentionthat there is no reasonable relationship between respondent's grievance and the parties'CBA. Present—Smith, J.P., Fahey, Lindley, Sconiers and Valentino, JJ.