Feher v. John Jay College of Criminal Justice

Appellate Division of the Supreme Court of New York

Feher v. John Jay College of Criminal Justice

37 A.D.3d 307, 830 N.Y.S.2d 120

Appellate Division of the Supreme Court of the State of New York·Decided February 20, 2007·Published·Cited by 1 cases

Opinion

Judgment, Supreme Court, New York County (Harold B. Beeler, J.), entered on or about December 19, 2005, denying the [308] petition and granting respondents’ cross motion to dismiss this converted CPLR article 78 proceeding, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about March 17, 2006, which denied petitioner’s motion for reargument and leave to amend her pleading, and from order, same court (Emily Jane Goodman, J.), entered July 10, 2006, which denied petitioner’s motion for renewal, inter alia, unanimously dismissed, without costs.

It is evident that the claims for breach of contract and tort against City University are not within the jurisdiction of Supreme Court, and are cognizable only before the Court of Claims (see Education Law § 6224 [4]). Furthermore, there is no record upon which to review the unarticulated claims of alleged discrimination (see Matter of Schulz v State of New York, 86 NY2d 225, 232 [1995], cert denied 516 US 944 [1995]). Such claims, if they exist, should properly be brought before the State Division of Human Rights for review under Executive Law §298.

To the extent petitioner sought injunctive relief, her claims should have been brought in an article 78 proceeding, which could not in any event be entertained since she failed to exhaust her administrative remedies (CPLR 7801). Notwithstanding petitioner’s failure to sign an agreement to arbitrate, the collective bargaining agreement governing her position provides for a three-step grievance procedure, and her failure to participate in steps 2 and 3 precludes her from seeking relief in an article 78 proceeding (see Matter of Plummer v Klepak, 48 NY2d 486, 489 [1979], cert denied 445 US 952 [1980]; Matter of Ciccone v Jacobson, 262 AD2d 78, 79 [1999]).

Inasmuch as the proceeding was properly dismissed, the remaining appellate issues, which address the merits of the claims, are not addressed. Concur—Tom, J.E, Sweeny, Malone and Kavanagh, JJ.

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Judgment, Supreme Court, New York County (Harold B. Beeler, J.), entered on or about December 19, 2005, denying the [308] petition and granting respondents’ cross motion to dismiss this converted CPLR article 78 proceeding, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about March 17, 2006, which denied petitioner’s motion for reargument and leave to amend her pleading, and from order, same court (Emily Jane Goodman, J.), entered July 10, 2006, which denied petitioner’s motion for renewal, inter alia, unanimously dismissed, without costs.

It is evident that the claims for breach of contract and tort against City University are not within the jurisdiction of Supreme Court, and are cognizable only before the Court of Claims (see Education Law § 6224 [4]). Furthermore, there is no record upon which to review the unarticulated claims of alleged discrimination (see Matter of Schulz v State of New York, 86 NY2d 225, 232 [1995], cert denied 516 US 944 [1995]). Such claims, if they exist, should properly be brought before the State Division of Human Rights for review under Executive Law §298.

To the extent petitioner sought injunctive relief, her claims should have been brought in an article 78 proceeding, which could not in any event be entertained since she failed to exhaust her administrative remedies (CPLR 7801). Notwithstanding petitioner’s failure to sign an agreement to arbitrate, the collective bargaining agreement governing her position provides for a three-step grievance procedure, and her failure to participate in steps 2 and 3 precludes her from seeking relief in an article 78 proceeding (see Matter of Plummer v Klepak, 48 NY2d 486, 489 [1979], cert denied 445 US 952 [1980]; Matter of Ciccone v Jacobson, 262 AD2d 78, 79 [1999]).

Inasmuch as the proceeding was properly dismissed, the remaining appellate issues, which address the merits of the claims, are not addressed. Concur—Tom, J.E, Sweeny, Malone and Kavanagh, JJ.

Feher v. John Jay College of Criminal Justice, 37 A.D.3d 307, 830 N.Y.S.2d 120 (N.Y. Ct. App. 2007).

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