81 Misc. 2d 670 | N.Y. Sup. Ct. | 1975
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 Barren (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(subd [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
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 (Matter of Schuyler v State Univ. of N. Y. at Albany, 31 AD2d 273) and where the petitioner will suffer irreparable injury should the hearing not be prohibited (Village of Camillus v Diamond, 76 Misc 2d 319). 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 (Matter of Allen v Kelley, 191 Misc 762, affd 273 App Div 963; Matter of Gibbs v Wallin, 282 App Div 578; 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 State of New York v King, 36 NY2d 59), it is not available merely to correct alleged errors or to prevent prospective error where
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) 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 (Matter of Wappingers Cent. School Dist. v P.E.R.B., 77 Misc 2d 472). The district has made no effort to show that it will suffer irreparable injury should the proceeding not be prohibited or that there is any extraordinary necessity for the remedy of prohibition. Instead, it relies on the contention that prohibition is appropriate because the issues before PERB are res judicata and the other respondents earlier elected their remedy. The district does not deny that PERB has jurisdiction over charges of improper employer practices (Civil Service Law, § 209-a, subd 1) and that such jurisdiction is exclusive and nondelegable (Civil Service Law, § 205, subd 5, par [d]). Neither does it controvert the very obvious corollary of such jurisdictional exclusivity— that a court may not act in matters in which exclusive jurisdiction is validly conferred upon an administrative tribunal (Central Hudson Gas & Elec. Corp. v Napoletano, 277 App Div 441).
The unavailability of the prohibition remedy is not the only reason why this petition must fail for prematurity. If the issues before PERB are res judicata, as claimed by the petitioner, then either the court in the earlier article 78 proceed
The motion to dismiss the petition is granted.