Opinion
Submitted April 13, 1999
June 1, 1999
In a hybrid proceeding pursuant to CPLR article 78 to review a determination by the respondent which, in effect, decreased the petitioner's salary by $4,148 per year, and for a judgment, inter alia, declaring that the respondent violated the petitioner's rights under Education Law § 3013, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Underwood, J.), entered July 1, 1998, which granted the respondent's motion to dismiss and dismissed the proceeding/action.
Paul J. Derkasch, Melville, N.Y., for appellant.
Cahn Wishod Knauer, LLP, Melville, N.Y. (Robert H. Cohen and Shari Lee Sugarman of counsel), for respondent.
SONDRA MILLER, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON, MYRIAM J. ALTMAN, JJ.
DECISION ORDER
ORDERED that the order and judgment is reversed, on the law, with costs, the motion is denied, the proceeding/action is reinstated, and the respondent is directed to answer the petition/complaint within 20 days after service upon it of a copy of this decision and order with notice of entry.
The parties' collective bargaining agreement provides a grievance procedure to resolve "any dispute between the parties concerning the interpretation of the terms and conditions of [the] agreement". There is no issue relating to the terms and conditions of the agreement. Instead, this proceeding represents an attempt by the petitioner to vindicate rights conferred upon him by Education Law § 3013 (1). The courts have repeatedly held that the statutory rights of tenured teachers whose positions are abolished, as established by the terms of Education Law § 3013, or by the parallel provisions of Education Law § 2510, may not be contravened in a collective bargaining agreement ( see, Matter of Board of Educ. of Barker Cent. School Dist. [Barker Teachers Union], 209 A.D.2d 945; Board of Educ. v. Depew Teachers Org. [Appeal No. 3], 167 A.D.2d 907; Matter of Szumigala v. Hicksville Union Free School Dist. Bd. of Educ., 148 A.D.2d 621; see also, Matter of Smith v. Board of Educ. of East Ramapo Cent. School Dist., 97 A.D.2d 795). The petitioner had every right to seek redress for the alleged violation of his statutory rights in this proceeding, even after having begun a grievance procedure which related exclusively to an alleged violation of his contract. "The issues presented and the remedies sought in each forum were separate and distinct" ( Matter of England v. Commissioner of Educ. of State of N.Y., 169 A.D.2d 868, 870; see also, Matter of Board of Coop. Educ. Servs. of Nassau County v. Nassau BOCES Cent. Council of Teachers, 103 A.D.2d 804, affd 64 N.Y.2d 632; Matter of Smith v. Board of Educ. of East Ramapo Cent. School Dist., supra).
The respondent's alternative arguments for affirmance are without merit.