The petitioner has instituted this proceeding for a judgment determining the validity of the elimination of the petitioner's position as a bus driver/dispatcher for respondent City of [*2]Poughkeepsie. Petitioner's position was eliminated in the City of Poughkeepsie's 2011 budget, effective July 1, 2011. The petitioner asserts the respondents' decision was in violation of the seniority provision of the parties' collective bargaining agreement and was arbitrary and capricious and without rational basis. The petitioner seeks an order directing the respondents to reinstate him to the position of bus driver/dispatcher effective July 1, 2011. Respondents move for an order dismissing the petition on the basis that it was not timely commenced and because of the petitioner's alleged failure to exhaust his administrative remedies.

An Article 78 proceeding must be commenced "within four months after the determination to be reviewed becomes final and binding upon the petitioner." (CPLR §217[1].) In determining when an agency action is "final and binding upon the petitioner" for Article 78 statute of limitations purposes, two requirements must be considered by the court: (1) the agency must have arrived at a definite position on the issue inflicting actual injury and (2) the injury may not be prevented or significantly ameliorated by further administrative action or steps taken by the complaining party. (Matter of Comptroller of City of NY v. Mayor of City of NY, 7 NY3d 256 [2006].)

Here, the latest date the respondents' action became final and binding upon the petitioner was when respondents notified the petitioner via correspondence dated January 3, 2011 that his position of bus dispatcher/driver was eliminated in the 2011 City of Poughkeepsie budget effective July 1, 2011. At that point, the respondents left no doubt that a definitive position had been reached regarding the elimination of the petitioner's position, which inflicted actual, concrete injury on the petitioner.

The petitioner contends in his affidavit that he does "not recall receiving" the respondents' January 3, 2011 letter prior to his receipt of a FOIL response on April 8, 2011. Therefore, the petitioner contends, his statute of limitations did not begin to run until April 8, 2011.

The respondents have submitted proof in admissible form that the January 3, 2011 letter was duly addressed and mailed to the petitioner on January 5, 2011. This presumption is not rebutted by the petitioner's mere denial of any recollection of having received the January 5, 2011 mailing. (See, Nassau Ins. Co. v. Murray, 46 NY2d 828 [1978].) Therefore, the petitioner's petition, which was not filed until May 25, 2011, is not timely and must be dismissed.

Moreover, even if the petitioner had established that he commenced the instant proceeding within the applicable statute of limitations, his petition must still be dismissed because he failed to first exhaust his administrative remedies. Normally, when "an employer and a union enter into a collective bargaining [*3]agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract." (Matter of Board of Educ. v. Ambach, 70 NY2d 501, 508 [1987].) The provisions of a collective bargaining agreement are determinative of the complaints required to be grieved pursuant thereto. (Matter of Moses v. Rensselaer County, 262 AD2d 697 [3rd Dept. 1999].)

Here, the subject agreement defines a grievance as "an alleged violation, misinterpretation or misapplication of the terms and conditions of this [a]greement." The agreement outlines a three step grievance procedure, which initially requires an alleged grievance be submitted in writing to the appropriate department head within thirty (30) working says after the occurrence complained of. In the event no answer to the grievance is received within ten days after submission or the answer received is unsatisfactory, the grievant is then required to submit a written grievance within ten days to the city administrator. If the answer received from the city administrator is unsatisfactory or if no answer is received within ten days, the union may then submit within ten days a grievance to binding arbitration.

The petitioner's gravamen is that he has seniority, as defined in the collective bargaining agreement, over another bus dispatcher/driver and that therefore the petitioner's position should not have been eliminated. As acknowledged by the petitioner, the provisions of the collective bargaining agreement specifically address the method for determining seniority. Therefore, the petitioner was obligated to avail himself of the grievance provisions set forth in the collective bargaining agreement prior to initiating this Article 78 proceeding. The petitioner failed to do so and thus is precluded from seeking relief in an Article 78 proceeding. (Matter of Hammond v. Village of Elmsford, 8 AD3d 484 [2nd Dept. 2004].)

The petitioner's reliance on Matter of Coleman v. Town of Eastchester, 39 AD3d 855 (2nd Dept. 2007) and Moses v. Rensselaer County, supra, for the proposition that he was not required to first exhaust his administrative remedies is misplaced. In Matter of Coleman, the court held that Coleman's allegations were not governed by the applicable collective bargaining agreement because he alleged a lack of substantial evidence and the imposition of a penalty that was shocking to the conscious. The court found those allegations were not governed by the terms of the parties' collective bargaining agreement. Similarly, the court in Moses determined that the petitioner's complaint fell outside the applicable agreement's definition of a grievance and that the petitioner was, therefore, not bound to follow the grievance mechanism outlined in the parties' agreement. As such, [*4]neither case is applicable to the instant proceeding.

Similarly, the petitioner's supposition that the union may have breached its duty to fairly represent the petitioner's interests in aggressively grieving to the respondents is unsupported by the record and belied by the fact that the petitioner failed to submit evidence or even allege that he complied with the first two steps of the collective bargaining agreement grievance procedure.

The petitioner's assertion that the respondents acted arbitrarily and capriciously and without a rational basis in fact or law by only eliminating two positions in the 2011 budget does not serve to remove the petitioner's complaint from the grievance procedure set forth in the collective bargaining agreement. The parties' agreement provides that the City of Poughkeepsie retains the right to manage its business affairs and services. The petitioner's assertion that the respondents managed business affairs in an arbitrary and capricious manner is tantamount to an assertion that the respondents violated, misinterpreted or misapplied the terms and conditions of the agreement, thus obligating the petitioner to follow the agreement's grievance procedure.

Therefore, it is ordered that the respondents' motion to dismiss is granted. In view of the court's determination, the respondents' motion to vacate the preliminary injunction is deemed academic.

The Court read and considered the following documents upon these applications:

PAGES NUMBERED

1.Order to Show Cause-Petitioner...........1-2

Verified Petition...................1-5

Affirmation-Santos..................1-4

Exhibits............................A-D

Memorandum of Law...................1-6

2.Order to Show Cause-Respondents..........1-2

Affirmation-Volkman.................1-4

Exhibits............................A-B

Affidavit-Michael Long..............1-4

Exhibits............................A-F

Affidavit-Milo Bunyi................1-4

Exhibit.............................A

Affidavit-Erian Buckley.............1-2

Exhibit.............................A

Affidavit-Deanne Flynn..............1-2

Exhibit.............................A

Memorandum of Law...................1-11 [*5]

3.Notice of Cross-Motion...................1-2

Affidavit-Michael Long..............1-4

Exhibits............................A-F

Affidavit-Erian Buckley.............1-2

Exhibit.............................A

Affidavit-Deanne Flynn..............1

Exhibit.............................A

Affidavit-Milo Bunyi................1-4

Exhibit.............................A

Memorandum of Law...................1-8

4.Reply Affirmation-Santos.................1-3

Affidavit-Steven Mason..............1-4

Exhibits............................A-C

Memorandum of Law in Opposition

to Order to Show Cause............1-11

Memorandum of Law in Opposition

to Cross-Motion...................1-8

5.Reply Affirmation-Volkman................1-5

Exhibit.............................A

Reply Affirmation-Volkman...........1-4

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

June 30, 2011

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

062911 decision & order