You are here: / / ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD...
,

ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW.

The Third Department determined the action pursuant to the Civil Service Law was not precluded because an action based on the same facts was still pending under the grievance procedure of the collective bargaining agreement (CBA). The Civil Service Law action was not dependent in any way on the CBA action. The petition challenged the hiring of Walsh as a part-time university police officer (UPO) by the State University of New York (SUNY):

… [T]he petition before us does not challenge any grievance determination by SUNY, nor does it cite a breach of any provision of the CBA as a basis for relief … . Instead, it challenges the appointment of Walsh on the ground that it violated Civil Service Law § 64. Although the remedies sought include an award of back pay for lost overtime assignments, available only under the CBA, counsel for petitioner confirmed, at oral argument of this appeal, that petitioner was no longer seeking such an award. Because petitioner does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA’s grievance procedure … . Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA [7.1 (a)]; second, concerning a term or condition of employment [7.1 (b)]; and third, concerning a claim of improper or unjust discipline [7.1 (c)]. None of these provisions can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY. Since these provisions are inapplicable, use of the grievance process to challenge the appointment on statutory grounds would have been futile … . Given that the appointment of Walsh is final, is alleged to have resulted in an actual, concrete injury to petitioner and because the question presented is “purely legal,” we find that the matter is ripe for judicial review … . Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, 3rd Dept 5-4-17

EMPLOYMENT LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/ADMINISTRATIVE LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/CIVIL SERVICE LAW (EMPLOYMENT LAW, ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/COLLECTIVE BARGAINING AGREEMENT (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)

You might also like
CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM.
TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT).
CLAIMANT PROVED HE WAS EMPLOYED BY A COMPANY WHICH DID NOT HAVE WORKERS’ COMPENSATION INSURANCE AND WHICH REFUSED TO APPEAR AT THE HEARING, GENERAL CONTRACTOR OBLIGATED TO PAY THE WORKERS’ COMPENSATION AWARDS (THIRD DEPT).
THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT.
DEFENDANT SHOULD NOT HAVE BEEN RESENTENCED ON THE ORIGINAL CHARGE PURSUANT TO CPL 420.10 FOR FAILURE TO PAY RESTITUTION; THE JUDGE DID NOT MAKE THE STATUTORILY REQUIRED FINDINGS FOR RESENTENCING UNDER THAT STATUTE; RESENTENCE VACATED (THIRD DEPT).
OIL-SPILL DAMAGES INVESTIGATOR WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT BENEFITS.
THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER NEGLECTED THE CHILD BASED ON MOTHER’S DRUG USE WHEN SHE WAS PREGNANT; ALTHOUGH FATHER DID NOT REPORT MOTHER’S DRUG USE TO HER PROBATON OFFICER, FATHER MADE EFFORTS TO INTERVENE RE: MOTHER’S DRUG USE DURING THE PREGNANCY (THIRD DEPT).
PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM TO THE PROOF AT... PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO...