Merante v. Burns

47 A.D.2d 671, 365 N.Y.S.2d 27, 89 L.R.R.M. (BNA) 2287, 1975 N.Y. App. Div. LEXIS 8882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1975
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review, inter alla,, determination suspending and dismissing petitioner from his position of correction officer, the parties cross-appeal from a judgment of the Supreme Court, Dutchess County, dated September 25, 1974, as follows: Respondents appeal from the entire judgment, which annulled a “notice of suspension” of petitioner, dated July 15, 1974, and ordered that petitioner be reinstated to his position, with back pay; and petitioner cross-appeals from the judgment insofar as it did not annul a “ notice of discipline ” of petitioner, dated July 19, 1974, which dismissed him from his position. Respondents also appeal, as limited by their brief, from so much of an order of the same court, dated January 10, 1975, as, upon reargument, adhered to the original decision. Judgment reversed and order reversed insofar as appealed from, on the law, without costs, and proceeding dismissed. Petitioner had adequate means of reviewing the action taken against him through the procedures established in the existing collective bargaining agreement between his union and respondents, but he deliberately postponed the hearing he was scheduled to receive pursuant thereto until the conclusion of this proceeding. His failure to exhaust such administrative remedies is a bar to article 78 relief and there is nothing in the record before us to establish any reason why this rule should not be adhered to (CPLR 7801; Matter of Sanford v. Bochefeller, 40 A D 2d 82, affd. 32 N Y 2d 788). Martuscello, Acting P. J., Christ, Munder and Shapiro, JJ., concur.