DeRosa v. Dyster

90 A.D.3d 1470, 936 N.Y.2d 402

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 2011
• Status: Published

Opinions

Memorandum:

Petitioner, a retired employee of respondent City of Niagara Falls (City), commenced this CPLR article 78 proceeding seeking to compel respondent Mayor of the City and the City to provide her with either postemployment health insurance coverage or opt-out payments in lieu of such coverage, pursuant to the terms of a memorandum of understanding (MOU) between the City and, inter alia, the union representing petitioner (union). Respondents moved to dismiss the petition on the ground that it was legally insufficient. Supreme Court granted the petition in part by requiring only the City to provide petitioner with the relief requested, but the court did not specifically rule on the motion. Because the judgment grants the relief sought by petitioner against only the City, we conclude that the court thereby implicitly granted that part of respondents’ motion seeking to dismiss the petition against the Mayor. We further conclude that the court erred in denying that part of respondents’ motion seeking to dismiss the petition against the City insofar as it sought to compel the City to permit petitioner to opt out of the health care plan and to receive opt-out payments. We therefore modify the judgment accordingly.

We reject the City’s contention that petitioner failed to exhaust her administrative remedies before commencing this proceeding. Although it is well established that a petitioner cannot maintain a CPLR article 78 proceeding unless he or she has exhausted the available administrative remedies (see e.g. Matter of Connor v Town of Niskayuna, 82 AD3d 1329, 1330-1331 [2011]; Matter of One Niagara LLC v City of Niagara Falls, 78 AD3d 1554, 1556 [2010]), the clear and unambiguous terms of the collective bargaining agreement (CBA) between the City and the union establish that there were no administrative remedies available to petitioner at the time she first became aggrieved.

* It is undisputed that the CBA permits grievances concerning retirement benefits, but the CBA expressly limits the availability of the grievance procedure to current employees. Pursuant to section 4 (A) of the CBA, the first procedural stage of the grievance procedure is for an aggrieved “employee” to request “a review and determination of his [or her] grievance by the head of the appropriate department.” Thus, unlike the situation in Matter of City of Niagara Falls (Niagara Falls Police Club Inc.) (52 AD3d 1327 [2008]), the grievance procedure set forth in the CBA is “ ‘predicated upon the status of the affected beneficiar[y . . . ,] as [an] active employee or retiree’ ” (id.). Based on the record before us, we conclude that petitioner was not aggrieved until after she retired. At that time, she was no longer an “employee” pursuant to the terms of the CBA, and there was no department head with whom she could file a grievance. Thus, petitioner could not have pursued a grievance before commencing this proceeding.

With respect to the merits of petitioner’s claims, we conclude that the MOU gave qualified employees a choice of either participating in the health care plan or opting out of that plan. Although the MOU permitted retirees to participate in the health care plan upon the same terms and conditions as, employees, it did not contain a similar opt-out provision for retirees. We reject petitioner’s contention that the opt-out provision was a term or condition of the health care plan. The opt-out paragraph specifically states that qualified employees, not retirees, could elect to opt out of the health care plan. Pursuant to the clear and unambiguous terms of the MOU, the opt-out provision was not a term or condition of the health care plan; it was an alternative to it. We therefore conclude that the court erred in determining that the City must provide petitioner with opt-out payments, as well as retroactive payments, in lieu of providing her with health insurance coverage.

We conclude, however, that the court properly determined that, as a retiree, petitioner was entitled to enroll in the health care plan at no cost to her.

All concur except Garni, J., who dissents and votes to reverse the judgment insofar as appealed from in accordance with the following memorandum.

We note that “[t]he material appended to [petitioner’s] brief is not part of the record on appeal, was not before the court when it ruled on the motion, and therefore is not considered on this appeal” (Kwiatkowski v Bertoldo, 13 AD3d 1208, 1209 [2004]; see Werdein v Johnson, 221 AD2d 899, 901 [1995]).