New York Law Review

Tag: Article 78

  • Matter of Dourdounas v. City of New York, 2025 NY Slip Op 01671: Exhaustion of CBA Grievance Procedures and Article 78 Proceedings

    2025 NY Slip Op 01671

    When a claim arises exclusively from a collective bargaining agreement (CBA) with a mandatory grievance process, an employee must pursue the grievance procedure, and may not bring an Article 78 proceeding to challenge the employer’s actions, unless a breach of the duty of fair representation by the union is alleged.

    Summary

    In Matter of Dourdounas v. City of New York, the New York Court of Appeals addressed the proper method for a unionized public employee to seek judicial review of a claim arising under a collective bargaining agreement. The court held that because the employee’s claim concerned a breach of contract under the CBA, and the CBA contained a mandatory grievance process, an Article 78 proceeding was improper. The employee could not bypass the CBA’s dispute resolution mechanism and bring the action directly, especially since the employee did not allege that the union breached its duty of fair representation. The court affirmed the dismissal of the Article 78 petition, clarifying the distinction between statutory claims, which can proceed under Article 78, and contract claims governed by a CBA, which require a different procedure and cause of action.

    Facts

    George Dourdounas, a high school math teacher, was assigned to the Absent Teacher Reserve (ATR) pool as per the CBA between the NYC Department of Education (DOE) and the United Federation of Teachers (UFT). The CBA allowed for a severance package for ATR teachers who retired by a certain date. Dourdounas was temporarily assigned to Bronx International High School. He requested the severance incentive, but was denied because he was considered permanently assigned to Bronx International. Dourdounas initiated a grievance process through the CBA. The grievance was denied at the school and Chancellor levels, and the UFT denied arbitration. Dourdounas then brought an Article 78 proceeding against the City.

    Procedural History

    Dourdounas initiated the grievance process under the CBA, which was denied at each step including a denial of arbitration by the UFT. Dourdounas then commenced an Article 78 proceeding in Supreme Court, which was dismissed as time-barred. The Appellate Division affirmed, also holding the claim was time-barred. The Court of Appeals reviewed the case.

    Issue(s)

    1. Whether an Article 78 proceeding is the proper mechanism for judicial review of a claim arising exclusively under a collective bargaining agreement, which has a mandatory grievance process, when the employee has exhausted the grievance procedure.
    2. Whether the statute of limitations for a claim arising under a collective bargaining agreement, and subject to a mandatory grievance process, begins to run when the employee is informed of the action, or when the grievance process is exhausted.

    Holding

    1. No, because the claim arose solely under the CBA, and the CBA included a mandatory grievance process, an Article 78 proceeding was not proper.
    2. The statute of limitations begins to run when the employee has exhausted the mandatory grievance process and is aware of the final decision.

    Court’s Reasoning

    The Court of Appeals relied heavily on Ambach v. Board of Education, which established that when a claim arises under a CBA with a mandatory grievance process, an employee may not sue the employer directly for breach of that agreement but must proceed through the union in accordance with the contract. Only if the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer. The court emphasized that claims arising exclusively from an alleged breach of a term in a CBA must be brought through a civil action for breach of contract. The court distinguished this case from claims based on statutory or constitutional violations, which are properly brought in an Article 78 proceeding.

    The court explained that disrupting the contract’s settlement procedures threatens the union’s authority as representative and weakens the individual employee’s protection. Therefore, since Dourdounas’s claim was based solely on a contract right, and he did not allege a breach of the duty of fair representation by the UFT, the Article 78 proceeding was improper, and his claim should be dismissed.

    The court clarified that even if the claim could have been properly brought under Article 78, the Appellate Division’s application of the exhaustion rules would have been incorrect because the statute of limitations would not have begun to run until the grievance process was exhausted.

    Practical Implications

    This decision highlights several key considerations for attorneys dealing with public sector employees in New York. First, it underscores the importance of identifying the source of the legal claim. If the claim is solely based on the CBA, the employee must exhaust the CBA’s grievance process before any judicial review can be sought. Second, it clarifies that an Article 78 proceeding is not the proper mechanism for a breach of contract claim arising from a CBA with a mandatory grievance process; a breach of contract action is required. Third, to bring a claim against the employer, the employee must allege both breach of contract by the employer and breach of the duty of fair representation by the union. Fourth, the statute of limitations for a claim arising under a CBA with a mandatory grievance process starts to run once the grievance process is exhausted. This case should inform how attorneys analyze cases involving public employees and their rights under a collective bargaining agreement, as the decision makes clear the path that must be taken to pursue a legal action. Finally, it underscores that the failure to allege a breach of the duty of fair representation will result in the dismissal of the claim.

    This case, especially concerning the analysis of when the statute of limitations begins to run, distinguishes claims involving mandatory versus optional grievance processes, and its emphasis on the Ambach rule, are crucial for attorneys practicing in employment law in New York.

    The decision reinforces the importance of adhering to established procedures and the limits on individual employees’ rights when collective bargaining agreements are in place. The ruling is consistent with prior cases concerning the need for exhaustion of remedies and the scope of Article 78 proceedings.

  • Matter of Tonawanda Seneca Nation v. Noonan, 26 N.Y.3d 715 (2016): Proper Venue for Article 78 Proceedings Against Multi-Bench Judges

    26 N.Y.3d 715 (2016)

    The proper venue for an Article 78 proceeding against a judge who serves in multiple capacities is determined by the capacity in which the judge was acting when the challenged action was taken.

    Summary

    The New York Court of Appeals addressed the proper venue for an Article 78 proceeding brought by the Tonawanda Seneca Nation against a County Court and Surrogate’s Court Judge, Robert Noonan. The Nation sought to prevent Judge Noonan from exercising jurisdiction over tribal lands in a probate matter. The court held that because the challenge was to actions taken by Judge Noonan in his capacity as Surrogate’s Court Judge, the action should have been commenced in the Supreme Court, not the Appellate Division. The court reasoned that when a judge serves in multiple capacities, the venue is determined by the role the judge was fulfilling when taking the action being challenged.

    Facts

    The Tonawanda Seneca Nation initiated an Article 78 proceeding in the Appellate Division against Judge Robert Noonan, the County Court and Surrogate’s Court Judge for Genesee County. The proceeding challenged Judge Noonan’s jurisdiction over tribal lands in a probate matter. The Appellate Division dismissed the petition, finding the proceeding should have been brought in the Supreme Court. Judge Noonan was acting as Surrogate regarding the probate of the will in question.

    Procedural History

    The Nation commenced an Article 78 proceeding in the Appellate Division. The Appellate Division dismissed the petition, holding it lacked jurisdiction. The Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether an Article 78 proceeding against a judge who serves in multiple judicial capacities should be commenced in the Appellate Division when the challenge is based on the judge’s actions as a Surrogate Court Judge and a County Court Judge?

    Holding

    1. No, because the judge was acting in his capacity as a Surrogate’s Court Judge, the proceeding should have been brought in Supreme Court.

    Court’s Reasoning

    The Court of Appeals determined the proper venue for an Article 78 proceeding against a multi-bench judge by considering the capacity in which the judge was acting when the challenged action occurred. The court cited CPLR 506(b)(1), which specifies venues for Article 78 proceedings against certain judicial officials, and found it did not apply when the judge was acting as a Surrogate. The court distinguished the case from Matter of B. T. Prods. v Barr, where a County Court Judge’s actions were considered under his role as a local criminal court. The court explained that Judge Noonan’s actions in the probate matter were solely within his authority as a Surrogate. The court referenced the legislative history of CPLR 506(b)(1), noting the concern about having judges whose principal duties are civil review the actions of colleagues whose duties are primarily criminal, which was not applicable here. The court affirmed the dismissal of the petition, concluding the Appellate Division lacked jurisdiction.

    Practical Implications

    This case clarifies the venue for Article 78 proceedings in New York when a judge serves in multiple capacities. Attorneys must carefully consider the specific capacity in which a judge acted when determining the proper court for filing an Article 78 petition. This decision emphasizes that the nature of the challenged action, not the judge’s overall position, dictates venue. Failure to file in the correct venue could result in dismissal of the petition, as happened here. The case also helps inform the application of CPLR 506(b)(1) and highlights the importance of understanding the judicial capacity in which an action is taken.

  • In the Matter of City of New York v. Grand Lafayette Properties LLC, 6 N.Y.3d 535 (2006): Statute of Limitations for Excessive Taking Claims

    6 N.Y.3d 535 (2006)

    A challenge to the merits of a condemnation decision, such as a claim of excessive taking, must be raised in a timely Article 78 proceeding, and cannot be raised for the first time as a defense in a vesting proceeding under Eminent Domain Procedure Law (EDPL) Article 4 after the statute of limitations has expired.

    Summary

    The City of New York initiated eminent domain proceedings to acquire property owned by Grand Lafayette Properties LLC (GLP) for a water system project. GLP argued that the City’s taking of the entire property was excessive. The New York Court of Appeals held that GLP’s challenge was time-barred because GLP failed to file an Article 78 proceeding within four months of the City Planning Commission’s (CPC) approval of the condemnation. The Court determined that challenges to the merits of a condemnation determination must be raised in a timely Article 78 proceeding and not as a defense in a later vesting proceeding.

    Facts

    The City of New York sought to condemn property owned by GLP to construct a shaft for the Third Water Tunnel project. The City filed an application with the Department of City Planning. GLP operated a parking lot on the property. The City used the Uniform Land Use Review Procedure (ULURP), an alternative condemnation procedure, which included public hearings. The City Planning Commission (CPC) approved the City’s request to acquire the property. GLP did not file an Article 78 proceeding challenging the CPC’s resolution. The City then commenced a vesting proceeding to formally acquire title to the property. GLP argued that the taking of the entire property was excessive.

    Procedural History

    The City commenced a vesting proceeding in Supreme Court. GLP raised an excessive taking claim as an affirmative defense and counterclaim. Supreme Court granted the City’s petition and rejected GLP’s excessiveness argument, dismissing GLP’s counterclaims as time-barred. The Appellate Division affirmed. GLP appealed to the New York Court of Appeals.

    Issue(s)

    Whether a landowner can challenge the merits of a condemnation determination, specifically an excessive taking claim, for the first time as a defense in an EDPL Article 4 vesting proceeding, or whether such a challenge must be raised in a timely Article 78 proceeding.

    Holding

    No, because any challenge to the merits underlying the CPC resolution must be raised within the Article 78 context. The statute of limitations began to run when the City Council’s call-up period expired, rendering GLP’s counterclaim untimely.

    Court’s Reasoning

    The Court reasoned that the Eminent Domain Procedure Law (EDPL) requires a condemnor to follow specific procedures before acquiring property. While EDPL 207 provides a 30-day statute of limitations for challenging a determination made under EDPL article 2, the EDPL is silent on the time period for judicial review when a condemnor proceeds under a section 206 exemption (like ULURP). Generally, challenges to administrative agency determinations must be brought via an Article 78 proceeding within four months of the determination becoming final. Here, the CPC’s resolution triggered the statute of limitations, beginning after the City Council’s call-up period expired.

    The Court applied a two-part test to determine when the statute of limitations began to run, asking whether the agency reached a definitive position inflicting actual injury and whether further administrative action could ameliorate the injury. The Court found that the CPC’s determination became final after the City Council’s call-up period expired, making GLP’s subsequent excessive taking claim in the vesting proceeding untimely.

    The Court rejected GLP’s argument that its claim did not accrue until the Mayor approved the acquisition, stating that the Mayor’s approval was not part of the ULURP review process and did not involve substantive analysis of the CPC’s findings. Allowing a challenge in the vesting proceeding would permit a condemnee to untimely contest issues outside the limited scope of an EDPL article 4 vesting proceeding.

    The court emphasized that the purpose of the vesting proceeding is to ensure procedural compliance with the EDPL, not to re-litigate the merits of the condemnation determination. As the court stated: “To hold otherwise would permit a condemnee to untimely contest issues that are outside the limited scope of an EDPL article 4 vesting proceeding.”

  • Best Payphones, Inc. v. Department of Information Technology and Telecommunications, 5 N.Y.3d 30 (2005): Determining When Agency Action is Final and Binding for Statute of Limitations Purposes

    5 N.Y.3d 30 (2005)

    For purposes of triggering the statute of limitations for Article 78 proceedings against administrative agencies, agency action is considered final and binding when the agency has reached a definitive position inflicting actual, concrete injury, and that injury cannot be significantly ameliorated by further administrative action.

    Summary

    Best Payphones, Inc. sought to challenge the New York City Department of Information Technology and Telecommunications’ (DOITT) actions regarding its payphone franchise. DOITT argued that Best’s claims were time-barred under the four-month statute of limitations for Article 78 proceedings. The Court of Appeals held that DOITT’s notification to Best that it had failed to meet franchise conditions, giving Best 60 days to comply or face removal of its phones, constituted a final and binding determination triggering the statute of limitations. Best’s failure to file its Article 78 petition within four months of this notification rendered its claims untimely.

    Facts

    Best Payphones, Inc. operated sidewalk payphones in New York City under a franchise approved by DOITT in August 1999, contingent on executing a Franchise Agreement. On January 13, 2000, DOITT notified Best that it had failed to submit executed copies of the Franchise Agreement and other required closing documents. DOITT gave Best 60 days to either sell its payphones to an approved entity, remove them, or submit the required documents. When Best failed to act, the City issued violations and began removing the phones in May 2000. Best delivered the Franchise Agreement on May 10, 2000, but the City continued to issue violations.

    Procedural History

    Best filed an Article 78 petition on July 11, 2000, seeking to compel DOITT to accept the Franchise Agreement, allow the sale of its assets, or allow reapplication for a franchise. Supreme Court dismissed the petition based on improper service and the statute of limitations, finding the claims accrued on January 13, 2000. The Appellate Division affirmed solely on the statute of limitations ground. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether DOITT’s January 13, 2000, notification to Best constituted a “final and binding” determination triggering the four-month statute of limitations for Article 78 proceedings under CPLR 217(1).

    Holding

    Yes, because DOITT’s January 13, 2000 letter represented a definitive position inflicting actual, concrete injury on Best, and the injury could not be significantly ameliorated by further administrative action other than compliance with DOITT’s demands.

    Court’s Reasoning

    The Court of Appeals emphasized the public policy of preventing government agencies from being unduly burdened by potential litigation, citing Solnick v. Whalen, 49 N.Y.2d 224, 232 (1980). The Court reiterated the two-pronged test for determining when agency action is final and binding: (1) the agency must have reached a definitive position inflicting actual, concrete injury, and (2) the injury cannot be prevented or significantly ameliorated by further administrative action. The Court found that DOITT’s January 13 letter met both prongs. DOITT clearly communicated its position that Best had failed to meet franchise conditions, which caused actual injury. The 60-day period offered by DOITT did not allow Best to ameliorate the injury except by agreeing to DOITT’s demands. The Court distinguished this case from situations where further administrative action could change the agency’s position. Quoting Matter of Essex County v. Zagata, 91 N.Y.2d 447, 454 (1998), the Court noted that the agency “left no doubt that there would be no further administrative action and that the expenditure of additional litigation expense and effort before the APA would do nothing to change the agency’s position or alleviate appellants’ injury.” Therefore, the Court held that DOITT’s action was final and binding on January 13, 2000, and Best’s Article 78 petition, filed in July 2000, was untimely.

  • Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753 (1991): Limits on Agency Justification for Termination

    Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753 (1991)

    Judicial review of an administrative agency’s determination is limited to the grounds invoked by the agency itself; a court cannot substitute a new or different basis to uphold the agency’s action if the original grounds are inadequate or improper.

    Summary

    Betsy Scherbyn was terminated from her probationary typist position with the Wayne-Finger Lakes Board of Cooperative Educational Services (BOCES). The stated reason was that she vacated the position by taking a leave of absence for another temporary role, making it impossible to hold two positions simultaneously. The Court of Appeals held that the termination was arbitrary and capricious because there was no rule prohibiting simultaneous leaves. The court emphasized that judicial review is limited to the grounds the agency originally invoked, and the lower courts erred in relying on a different justification raised later in the litigation. The order dismissing Scherbyn’s Article 78 proceeding was reversed, and reinstatement was ordered.

    Facts

    Scherbyn was appointed to a probationary typist position at BOCES in September 1986. In January 1987, she took a leave of absence to accept a temporary data entry operator position, approved by the Ontario County Personnel Officer, Georgia Delaney. In August 1987, she took another leave from the data entry position to accept a provisional data control clerk role, also approved by Delaney. In September 1988, BOCES terminated Scherbyn’s data control clerk role, reinstated her briefly to the data entry position, and then terminated her from that as well. BOCES then sought to reinstate her to her original typist position. Delaney, advised by the NYS Department of Civil Service, refused to approve the reinstatement, arguing Scherbyn vacated the typist position when she took a leave for the data entry role, because an employee cannot hold two positions at once.

    Procedural History

    Scherbyn filed an Article 78 proceeding challenging her termination. Supreme Court initially found BOCES’ reasoning arbitrary but ultimately dismissed the petition, citing an Ontario County Civil Service rule invoked by BOCES in their answer that deemed Scherbyn to have resigned from the typist position. The Appellate Division affirmed, characterizing the proceeding as mandamus to compel reinstatement. The Court of Appeals reversed, holding the proceeding was mandamus to review and that the lower courts erred in considering a justification not originally invoked by the agency.

    Issue(s)

    Whether a court reviewing an administrative agency’s determination can uphold the determination based on grounds not originally invoked by the agency, even if those grounds might independently justify the agency’s action?

    Holding

    No, because judicial review of an administrative determination is limited to the grounds invoked by the agency. If those grounds are inadequate or improper, the court cannot substitute a different basis to affirm the administrative action.

    Court’s Reasoning

    The Court of Appeals clarified that this was a mandamus to review, not a mandamus to compel, because Scherbyn was challenging the agency’s discretionary decision to terminate her. The Court reiterated the established principle that judicial review is limited to the grounds the agency actually relied upon in making its decision. The Court emphasized that reviewing courts must judge the propriety of the agency’s action solely by the grounds invoked by the agency. As the Supreme Court correctly observed, the stated reason for Scherbyn’s dismissal was arbitrary and capricious since there was no rule prohibiting simultaneous leaves of absence. The Court found the alternative ground for removal, raised later in the litigation and relied upon by the lower courts, could not serve to sustain the dismissal. The court stated, ” ‘[a] reviewing court, in dealing with a determination * * * which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis’ ” (Matter of Montauk Improvement v Proccacino, 41 NY2d 913). The Court held the lower courts erred by considering a justification not originally cited by the agency. This case highlights the importance of agencies clearly stating their reasons for a decision at the time the decision is made.

  • State Commission for Human Rights v. Senti, 29 N.Y.2d 254 (1971): Appealability of Intermediate Orders in Special Proceedings

    State Commission for Human Rights v. Senti, 29 N.Y.2d 254 (1971)

    An order of the Supreme Court vacating a State Commission for Human Rights order and remitting the matter for a new hearing is appealable as of right to the Appellate Division because it is a final or interlocutory judgment in a special proceeding, and is not an Article 78 proceeding.

    Summary

    The State Commission for Human Rights appealed the Appellate Division’s dismissal of its appeal from a Supreme Court order. The Supreme Court had vacated the Commission’s order against the respondents and remitted the matter for a new hearing, citing improper notice. The Appellate Division dismissed the Commission’s appeal, holding the Supreme Court’s order was an unappealable intermediate order. The Court of Appeals reversed, holding that the Supreme Court’s order was appealable as of right because the enforcement proceeding initiated by the Commission was a special proceeding, not an Article 78 proceeding, thus falling under the general rule allowing appeals from final or interlocutory judgments.

    Facts

    The State Commission for Human Rights issued an order against the respondents, presumably related to a human rights violation. The respondents contested the order, arguing they did not receive proper notice of the initial proceedings. The Supreme Court, Queens County, agreed with the respondents after reargument, vacated the Commission’s order, and remitted the case back to the Commission for a new hearing, directing that proper notice be given this time.

    Procedural History

    1. The State Commission for Human Rights issued an order against the respondents.
    2. The respondents challenged the order in Supreme Court, Queens County.
    3. The Supreme Court vacated the Commission’s order and remitted the matter for a new hearing.
    4. The Commission appealed to the Appellate Division, Second Department.
    5. The Appellate Division dismissed the appeal, deeming the Supreme Court’s order an unappealable intermediate order.
    6. The Court of Appeals granted the Commission leave to appeal.

    Issue(s)

    Whether an order of the Supreme Court vacating a State Commission for Human Rights order and remitting the matter for a new hearing is appealable as of right to the Appellate Division.

    Holding

    Yes, because the proceeding to enforce the Commission’s order is a special proceeding under the CPLR, and the Supreme Court’s order was a final or interlocutory judgment, not an unappealable intermediate order in an Article 78 proceeding.

    Court’s Reasoning

    The Court of Appeals focused on whether the Supreme Court’s order was appealable as of right. The Appellate Division relied on cases involving Article 78 proceedings, where intermediate orders are generally not appealable as of right. However, the Court of Appeals distinguished this case, noting that the proceeding was initiated by the Commission to enforce its order under Section 298 of the Executive Law, making it a special proceeding, not an Article 78 proceeding. The Court cited CPLR 5701(a)(1), which allows appeals as of right from any final or interlocutory judgment in an action originating in the Supreme Court. CPLR 105(b) defines “action” to include a special proceeding. The court stated that 5701 (subd. [b], par. 1), which restricts appeals from intermediate orders in Article 78 proceedings, does not apply here. Therefore, the general rule allowing appeals from final or interlocutory judgments in special proceedings applied. The Court reversed the Appellate Division’s order and remitted the case for consideration of the merits, concluding that an appeal as of right did lie. The court noted that at the time of the proceeding, Section 298 provided that review from Supreme Court determinations should be treated in the same manner as any appeal from a judgement in a special proceeding.