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:
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com