From Casetext: Smarter Legal Research

Matter of Mangee

Appellate Division of the Supreme Court of New York, Fourth Department
May 30, 1997
239 A.D.2d 892 (N.Y. App. Div. 1997)

Opinion

May 30, 1997

Present — Denman, P.J., Pine, Callahan, Boehm and Fallon, JJ.


Order unanimously reversed on the law without costs, petition denied and cross motion granted. Memorandum: Supreme Court erred in granting the petition for a stay of arbitration of respondent's grievance ( see, CPLR 7503[b]). The issues whether respondent has stated a grievance as that term is defined in the collective bargaining agreement, whether her grievance has merit, and whether her notice of intention to arbitrate is defective are for the arbitrator to resolve ( see, Matter of Board of Educ. v. Watertown Educ. Assn., 74 N.Y.2d 912, 913; Matter of City of Gloversville [Civil Serv. Empls. Assn.), 210 A.D.2d 851, lv denied 86 N.Y.2d 702; Matter of Board of Educ. [Gowanda Cent. School Non-Teaching Personnel Assn.], 202 A.D.2d 1048).

We reject petitioners' contention that the grievance is moot because respondent has retired. A resignation under coercion or duress is not a voluntary act and may be nullified ( Matter of Gould v. Board of Educ., 81 N.Y.2d 446, 451). The record establishes that respondent resigned to avoid termination, which would have decreased her retirement benefits. Under the circumstances, her retirement was involuntary ( see, Matter of Marland v. Ambach, 79 A.D.2d 48, affd 59 N.Y.2d 711) and thus not a bar to arbitration of her grievance. Petitioners' reliance on Matter of Girard v. Board of Educ. ( 168 A.D.2d 183) is misplaced. The petitioner in that case had seniority rights that would have entitled her to another position, and thus she was not forced to choose between resignation and termination of employment. Here, petitioners do not contend that respondent had seniority rights entitling her to another position. (Appeal from Order of Supreme Court, Cayuga County, Contiguglia, J. — Arbitration.)


Summaries of

Matter of Mangee

Appellate Division of the Supreme Court of New York, Fourth Department
May 30, 1997
239 A.D.2d 892 (N.Y. App. Div. 1997)
Case details for

Matter of Mangee

Case Details

Full title:In the Matter of the Arbitration between CARL P. MANGEE, as Superintendent…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 30, 1997

Citations

239 A.D.2d 892 (N.Y. App. Div. 1997)
659 N.Y.S.2d 653

Citing Cases

Rao v. Rodriguez

Even if Plaintiff had adequately pleaded and briefed a theory of "coerced resignation" under the NYCHRL, any…

Meier v. Bd. of Educ. Lewiston Porter Cent. Sch. Dist.

Supreme Court determined that the resignation of petitioner, a tenured teacher formerly employed by…