Matter of Donald Reese v Board of Trustees of Mohawk Valley Community College

Matter of Reese v Board of Trustees of Mohawk Val. Community Coll. 2006 NY Slip Op 03385 [28 AD3d 1240] April 28, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

In the Matter of Donald Reese, Appellant, v Board of Trustees of Mohawk Valley Community College et al., Respondents.

—[*1]

Appeal from a judgment (denominated order) of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered March 4, 2005 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner retired from his employment with Mohawk Valley Community College (College) and thereafter commenced this proceeding pursuant to CPLR article 78 seeking health insurance benefits in accordance with the terms of the collective bargaining agreement between the Association of Mohawk Valley Administrators and respondents. Supreme Court properly dismissed the petition inasmuch as petitioner lacks standing to bring the instant proceeding against respondents. "[Petitioner] has no right to sue his former employer directly for its alleged breach of a collective bargaining agreement that it entered into with the union of which [petitioner] was a member . . . . Unless the [collective bargaining] agreement provides otherwise, only when the union fails to represent an employee fairly may the employee go beyond the agreed upon procedure and commence a [CPLR article 78 proceeding] directly against the employer" (Clark v County of Cayuga, 212 AD2d 963, 963 [1995]). Petitioner has not alleged a breach of the duty of fair representation, and there is no basis for the commencement of this proceeding by petitioner based on those portions of the collective bargaining agreement in the record before us and upon which he relies. Contrary to the contention of petitioner, it is immaterial that he has retired and is no longer an active employee of the College (see Matter of Board of Coop. Educ. Servs. of Nassau County v Central Council of Teachers, 96 AD2d 598, 599 [1983]; see generally Clark, 212 AD2d 963 [1995]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Smith and Pine, JJ.