The petitioners have brought this special proceeding under CPLR Article 78 seeking a declaration that the library aide job assignments given to the petitioners, Tracy Cooper and Elizabeth Hill, are in violation of the out-of-title prohibition contained in Civil Service Law Section 61 and that said petitioners be compensated for all work performed in the higher "Library Clerk" job title. The respondents have each submitted a verified answer to the petition and have raised therein certain objections/defenses to this proceeding. Each respondent has also moved for summary judgment and dismissal of the petition herein. The petitioners have submitted responding papers and the respondent Groton Central School District has submitted reply papers.

The record reflects that in July or August of 2009 the petitioners, Tracy Cooper and Elizabeth Hill, who held non-competitive teacher aide positions with the Groton Central School District, were informed that they would be assigned to the library in their respective schools for the 2009-2010 school year and their duties were designed to support the Library Media Specialists there. They began working in the libraries on or about September 1, 2009 and their positions continued to be classified as non-competitive Teacher Aide with the approval of the Civil Service Commissioner of Tompkins County.

The petitioners contend that the duties assigned to Ms. Cooper and Ms. Hill are more appropriate to the higher grade competitive title of "Library Clerk"and that they should be compensated with an increase in pay, estimated to be $2.00 per hour, for all hours worked in the out-of-title assignment. The petitioners assert that the continued classification of Ms. Cooper and Ms. Hill as Teacher Aides constitutes an error of law and is arbitrary and capricious.

The respondents allege that Ms. Cooper and Ms. Hill are teacher's aides who have been properly placed in their respective school libraries to assist the teachers in charge of those libraries and that their continued classification as a "Teacher Aide" after such placement is in [*2]accordance with law and is neither arbitrary nor capricious. The respondents also seek dismissal of the petition herein on grounds that it is barred by the four-month statute of limitations under CPLR 217 (1) and that the petition should be dismissed on the grounds that the petitioners have failed to exhaust the administrative remedies that are available to them under the provisions of the collective bargaining agreement between the petitioner CSEA and the Groton Central School District.

First, with respect to that portion of the respondents' motions seeking to dismiss the petition on grounds that it is barred by the four-month statute of limitations, the Court notes that, although the petitioners were apparently first informed of the assignments of Ms. Cooper and Ms. Hill to the libraries in July or August of 2009, they did not actually begin working in the libraries until September of 2009. Further, the respondents have not identified any specific date in July or August of 2009 when they claim the four-month time period began to run. Upon the record presented, and since it appears that Ms. Cooper and Ms Hill did not begin performing any duties in the libraries until on or about September 1, 2009, the Court finds that the filing of the petition herein on December 17, 2009 was timely and that the respondents' motions to dismiss on statute of limitations grounds should be denied.

With respect to that portion of the School District's motion seeking to dismiss the petition on the grounds that the petitioners failed to exhaust their available administrative remedies (CPLR 7801 [1]), the Court finds that CSEA was the collective bargaining agent for Ms. Cooper and Ms. Hill and they are bound by the terms of the collective bargaining agreement, effective July 1, 2007, that was negotiated on their behalf. Further, the terms of the agreement appear to cover out-of-title work (Article XXII) and the provisions of Article XXV of the agreement establish a three-stage grievance procedure. The evidence submitted by the School District in support of its motion indicates that none of the grievance procedures outlined in the agreement were initiated by either Ms. Cooper or Ms. Hill and CSEA has not satisfactorily demonstrated that it initiated any grievance procedures or that the petitioners substantially complied with the provisions of Article XXV. Under such circumstances, the Court concludes that the petition should be dismissed due the failure of the petitioners to exhaust their available administrative remedies. (see, Plummer v. Klepak, 48 NY2d 486; Waite v. Coombe, 247 AD2d 663; Ray v. New York City Department of Correction, 212 AD2d 387). The petitioners' claim that the terms of the collective bargaining agreement are ambiguous is unpersuasive and the case of Delmage v. Mahoney, 224 AD2d 688, cited by the petitioners in support of their position, is distinguishable on its facts.

Moreover, even if the petitioners had exhausted their administrative remedies, as to the merits of the petitioners' claim, the Court finds that the respondents' continued classification of Ms. Cooper and Ms. Hill as Teacher Aides is appropriate and should not be overturned. The duties performed by Ms. Cooper and Ms. Hill in connection with their work as teacher aides in the library, as described in the affidavits submitted by the respondents, are entirely consistent with the "Teacher Aide" classification and do not include any duties that are exclusive to the job description for the higher grade "Library Clerk." The fact that there is some overlap of duties [*3]performed by Ms. Cooper and Ms. Hill as teacher aides in the library and those of a "Library Clerk," does not warrant the relief requested by the petitioners herein. (see, Curtiss v. Angello, 269 AD2d 675, 676). Further, the petitioners have failed to offer any evidence, from anyone with personal knowledge of the job duties performed by the Ms. Cooper and Ms. Hill in the libraries or the time they spend on any specific duties, which indicates that they perform any duties that are beyond the scope of the job description for a "Teacher Aide." The record indicates that a significant portion of Ms. Cooper and Ms. Hill's duties involve supervision of children in the library as well as providing assistance to the Library Media Specialist. Such duties are not included in the job description for a "Library Clerk." Under such circumstances, the Court concludes that the continued classification of Ms. Cooper and Ms. Hill as Teacher Aides" has a rational basis and is neither arbitrary nor capricious. As a result, the petition herein should be dismissed in its entirety. (see, Scarsdale Association of Educational Secretaries v. Board of Education of Scarsdale Union Free School District, 53 AD3d 572; Civil Service Employees Association, Inc., Local 1000, AFSCME, v. Angello, 277 AD2d 576; Curtiss v. Angello, supra at page 676; Gajewski v. Angello, 301 AD2d 721).

Accordingly, for the reasons set forth above, it is

ORDERED AND ADJUDGED, that those portions of the respondents' motions seeking dismissal of the petition on the ground that it is barred by the applicable statute of limitations are hereby denied, and it is further

ORDERED AND ADJUDGED, that the motions of the respondents seeking dismissal of the petition herein are otherwise granted and the petition is hereby dismissed in its entirety.

This shall constitute the Decision and Judgment of the Court. No costs are awarded on the motions.

Dated: June ___, 2010_______________________________

ROBERT C. MULVEY

J.S.C.