Central School Dist. No. 12, Middle Island v. Middle Island Teachers Ass'n, NYSUT, NEA-AFT, AFL-CIO

Decision Date12 March 1975
Docket NumberNEA-AF,AFL-CIO
Citation366 N.Y.S.2d 562,81 Misc.2d 670
Parties, 90 L.R.R.M. (BNA) 2745 Application of CENTRAL SCHOOL DISTRICT NO. 12, MIDDLE ISLAND, etc., Petitioner, v. For a Judgment Staying All Further Action by MIDDLE ISLAND TEACHERS ASSOCIATION, NYSUT,et al., Respondents, in relation to the retirement of Alice Harren.
CourtNew York Supreme Court

David E. Sallah, Garden City, for petitioner.

Martin L. Barr, Albany, for respondent Public Employment Relations Bd.

Eugene M. Kaufman, New York City, for respondents Middle Island Teachers Ass'n and Alice Harren.

LEON D. LAZER, Justice.

In this Article 78 proceeding, the petitioner, Central School District No. 12, Middle Island (the 'district'), seeks judgment staying the Middle Island Teacher's Association (the 'association'), the New York Public Employment Relations Board ('PERB') and Alice Harren (the 'teacher') from taking further action with respect to an improper employer practice charge now pending before PERB which has been filed by the association and the teacher. PERB has moved pursuant to CPLR 7804(f) for judgment dismissing the proceeding in point of law.

The underlying dispute in this proceeding originated at the end of the 1973--1974 school year when the district, acting pursuant to a resolution adopted in 1964 which provided for compulsory retirement at age 70, requested the teacher's resignation. The teacher thereupon commenced an Article 78 proceeding in which she argued that compulsory retirement of a tenured teacher was a violation of the Education Law, the district's collective bargaining agreement with the association and the 14th Amendment. These contentions were rejected by Mr. Justice Tasker of this court who dismissed the petition on the merits but an appeal from his judgment is pending. Thereafter, an attempt by the teacher and the association to obtain arbitration of the dispute under the grievance machinery contained in the bargaining agreement was stayed by order of Mr. Justice Lipetz on the ground that the issues had been rendered res judicata by the dismissal of the earlier Article 78 proceeding. In its current petition, the district asserts that the proceeding in which the respondent association and teacher seek a determination from PERB that the district engaged in an improper employer practice (Civil Service Law § 209--a) by refusing to negotiate the issue of mandatory retirement should be stayed because the issues are res judicata and on the additional ground that the association and the teacher elected their remedy when the teacher (represented by the same attorney who now represents both the association and the teacher) instituted the prior Article 78 proceeding. In its motion to dismiss, PERB argues that the petition fails to state a cause of action, the district has not exhausted its administrative remedy, and that the proceeding is premature.

The relief sought by the district is in the nature of a writ of prohibition, a remedy not favored by the courts and never issued as a matter of right but only in the sound discretion of the court in clear-cut situations where there is no other remedy (Schuyler v. State University of N.Y. at Albany, 31 A.D.2d 273, 297 N.Y.S.2d 368) and where the petitioner will suffer irreparable injury should the hearing not be prohibited (Village of Camillus v. Diamond, 76 Misc.2d 319, 350 N.Y.S.2d 546). A writ of prohibition is not a proper remedy where any order or decision which may be made in the matter is reviewable in a certiorari proceeding (Allen v. Kelley, 191 Misc. 762, 77 N.Y.S.2d 879, aff'd 273 App.Div. 963, 79 N.Y.S.2d 312; Gibbs v. Wallin, 282 App.Div. 578, 125 N.Y.S.2d 699; Village of Camillus v. Diamond, supra). Furthermore, although prohibition is available in those cases where a tribunal is acting or threatening to act in a matter over which it has no subject matter jurisdiction or where it exceeds its authorized power in a proceeding over which it has jurisdiction (Matter of the State of New York v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351), it is not available merely to correct alleged errors or to prevent prospective error where the tribunal has subject matter jurisdiction (Ronan v. Brown, 35 A.D.2d 959, 317 N.Y.S.2d 868; Lawrence v. Supreme Court of State of N.Y., County of N.Y., 24 A.D.2d 849, 264 N.Y.S.2d 501), even where it is assumed that jurisdiction will be exercised erroneously (Gifts by Wire, Inc. v. Bruckman, 253 App.Div. 350, 2 N.Y.S.2d 215). Errors of law, which may be verbalized incorrectly as excesses of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ (Matter of the State of New York v. King, Supra). A court may not by an order of prohibition give gratuitous advice as to the effect an administrative agency which has subject matter jurisdiction should give to a determination made by a judicial body (Petition of Board of Education, 195 Misc. 572, 90 N.Y.S.2d 21).

Application of these principles to the instant case supports PERB's contention that the proceeding before this court is premature. A final determination rendered by PERB upon a charge that an employer has refused to negotiate in good faith (Civil Service Law § 209--a, subd. 1(d)) is reviewable in an Article 78 proceeding (Civil Service Law § 213), and there exists no constitutional or statutory barrier to the postponement of judicial review of a proceeding before PERB until the complete record shall be before the court (Wappingers Sch. Dist. v. P.E.R.B., 77 Misc.2d 472, 354 N.Y.S.2d 326). The district has made no...

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