Petitioner’s originally commenced a proceeding pursuant to Article 78 of the Civil Practice Law and Rules in Supreme Court. Supreme Court dismissed the Article 78 proceeding based on the understanding that Petitioner would have an opportunity to pursue her claim via an Education Law §310 appeal to the Commissioner of Education. The court had deferred to the Commissioner of Education and denied the Article 78 petition "without prejudice to renew [the claim] before the Commissioner of Education.” The Commissioner ruled that "[given] this language, it would be inconsistent with the court’s decision to dismiss this Education Law §310 appeal based on an election of remedies [argument as the school district] successfully moved to dismiss the Article 78 petition on the ground of primary jurisdiction and filed its motion approximately four months after petitioner’s union declined to pursue a grievance." In the words of the Commissioner, the school district "... had the opportunity to move to dismiss the Article 78 petition based on election of remedies but chose not to do so" and declined to dismiss Petitioner's §310 appeal based on the school district's election of remedies argument at this stage of the dispute. Click on the URL below to access this decision posted on the Internet:
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