Tassel v. County of Orange

204 A.D.2d 560, 614 N.Y.S.2d 193, 1994 N.Y. App. Div. LEXIS 5243

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the County of Orange terminating her employment as a Nursing Assistant for the County of Orange, the petitioner appeals from a judgment of the Supreme Court, Orange County (Barone, J.), dated June 5, 1992, which dismissed the proceeding on the ground that the petitioner had failed to exhaust her administrative remedies.

Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Orange County for determination of the petition on the merits.

The Supreme Court erred in concluding that the petitioner was “required to exhaust her administrative remedies” by submitting this matter to arbitration pursuant to the “grievance procedure” set forth in Article 30 of the parties’ collective bargaining agreement. The petitioner’s application does not constitute a “grievance”, as defined in the agreement, and thus she is not required to pursue the grievance procedure culminating in arbitration. Since this matter falls outside the scope of the parties’ agreement to arbitrate (see, Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 5), we find that the petitioner is entitled to judicial review of the determination terminating her employment. Thompson, J. P., Rosenblatt, Pizzuto and Florio, JJ., concur.