Opinion
January 11, 1996
Appeal from the Supreme Court, Albany County (Kahn, J.).
On October 13, 1994, respondent City Manager of the City of Troy, implementing an executive decision, informed certain city employees that their positions were being abolished. The workers, including petitioner Marianne Herkenham, were directed to cease work immediately, although they were told they would be paid at least through October 28, 1994. Petitioners then commenced this CPLR article 78 proceeding in which they contend, inter alia, that positions can be abolished only by the City Council, through the budget amendment process, and that the City Manager exceeded his authority by doing so unilaterally. Petitioners seek an order prohibiting respondents from interfering with the terminated employees' resumption of their employment, and from taking certain other actions which, in petitioners' view, violate the law and the terms of the collective bargaining agreement governing respondents' relationship with City employees and their union, petitioner Civil Service Employees' Association. Respondents' motion to dismiss the petition on objections in point of law, pursuant to CPLR 7804 (f), was granted, and petitioners appeal.
Supreme Court also dismissed without prejudice an amended petition, brought on behalf of petitioners and others, that raised several additional claims, and did not consider either the allegations set forth therein or petitioners' motion for discovery with respect thereto. Having commenced a separate proceeding encompassing the additional allegations, petitioners do not contest these portions of Supreme Court's judgment.
Considering only the petition and its attachments, as we must at this juncture ( see, Matter of Scott v Commissioner of Correctional Servs., 194 A.D.2d 1042, 1043; Matter of N.J. Koss, Inc. v Regan, 149 A.D.2d 785, 787-788; Matter of Cutcher v Nyquist, 39 A.D.2d 810, 811), we conclude that petitioners, insofar as they allege that the City Manager was without power to abolish the positions at issue, which were created by budget ordinance, have stated a viable cause of action ( see, Matter of Torre v County of Nassau, 86 N.Y.2d 421). The first, third and sixth causes of action should not, therefore, have been dismissed.
The six causes of action were denominated "first", "second", "third", "fourth", "fourth" and "fifth". To avoid confusion, the claims will be treated herein as if they had been properly numbered, with the second "fourth" cause of action referred to as the "fifth" and that which was denominated "fifth", as the "sixth".
The other causes of action are meritless. Neither the second cause of action, which is based on N Y Constitution article VII, nor those aspects of the fourth and fifth causes of action charging violation of Labor Law § 201-d, find support in the petition or incorporated documents. Moreover, inasmuch as the fourth cause of action is, essentially, based on allegations that respondents breached the terms of the collective bargaining agreement by failing to provide a seniority list, Supreme Court properly found respondents entitled to dismissal of that claim on the ground that petitioners failed to demonstrate that they had exhausted their administrative remedies, in that they should have pursued contractual grievance procedures prior to bringing suit ( see, Hosp v Seniuk, 86 A.D.2d 667, 668-669; Matter of Flemming v Cagliostro, 53 A.D.2d 187, 189, lv denied 40 N.Y.2d 806).
To the extent that respondents' purported attempt to circumvent proper collective bargaining procedures, by negotiating directly with City employees rather than with their appointed representatives, might be viewed as constituting a failure to negotiate in good faith in violation of the Taylor Law ( see, Civil Service Law § 209-a), it suffices to note that claims of this type must first be submitted to the Public Employment Relations Board ( see, Civil Service Law § 205 [d]; Matter of Palumbo v Board of Educ., 60 A.D.2d 858). The second, fourth and fifth causes of action were, accordingly, properly dismissed.
Mikoll, J.P., Crew III, White and Peters, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as granted the motion dismissing petitioners' first, third and sixth (denominated fifth) causes of action; motion denied regarding said causes of action; and, as so modified, affirmed.