Opinion
CA 05-02534.
April 28, 2006.
Appeal from a judgment (denominated order) of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered March 4, 2005 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.
SCHOOL ADMINISTRATORS ASSOCIATION OF NEW YORK STATE, LATHAM (ROBERT E. SMITH OF COUNSEL), FOR PETITIONER-APPELLANT.
LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (FRANK W. MILLER OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Before: Pigott, Jr., P.J., Hurlbutt, Scudder, Smith and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Petitioner retired from his employment with Mohawk Valley Community College (College) and thereafter commenced this proceeding pursuant to CPLR article 78 seeking health insurance benefits in accordance with the terms of the collective bargaining agreement between the Association of Mohawk Valley Administrators and respondents. Supreme Court properly dismissed the petition inasmuch as petitioner lacks standing to bring the instant proceeding against respondents. "[Petitioner] has no right to sue his former employer directly for its alleged breach of a collective bargaining agreement that it entered into with the union of which [petitioner] was a member. . . . Unless the [collective bargaining] agreement provides otherwise, only when the union fails to represent an employee fairly may the employee go beyond the agreed upon procedure and commence a [CPLR article 78 proceeding] directly against the employer" ( Clark v. County of Cayuga, 212 AD2d 963, 963). Petitioner has not alleged a breach of the duty of fair representation, and there is no basis for the commencement of this proceeding by petitioner based on those portions of the collective bargaining agreement in the record before us and upon which he relies. Contrary to the contention of petitioner, it is immaterial that he has retired and is no longer an active employee of the College ( see Matter of Board of Coop. Educ. Servs. of Nassau County v. Central Council of Teachers, 96 AD2d 598, 599; see generally Clark, 212 AD2d 963).