Hempstead Classroom Teachers Ass'n v. Board of Education , 112 A.D.2d 267 ( 1985 )

In an action, inter alia, to recover damages for breach of a collective bargaining agreement, plaintiffs appeal from an order of the Supreme Court, Nassau County (Roncallo, J.), dated September 20, 1984, which granted defendant’s motion to dismiss the amended complaint pursuant to CPLR 3211 (a) (5) upon the ground that the action could not be maintained because of "arbitration and award”.

Order reversed, with costs, and motion denied.

After pursuing a grievance through the first three levels of the grievance machinery provided by their collective bargaining agreement with defendant, plaintiffs proceeded to the last step, which provided for advisory arbitration. Defendant rejected the arbitrator’s recommendation, whereupon plaintiffs brought this action, inter alia, to recover damages for breach of the collective bargaining agreement.

Defendant’s contention that the grievance procedure is plaintiffs’ sole remedy is without merit in the absence of clear language in the collective bargaining agreement which would bar them from maintaining this action (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 289; Nassau Ch. of Civ. Serv. Employees Assn. v County of Nassau, 84 AD2d 784). Hence, Special Term erred in granting defendant’s motion to dismiss the amended complaint on the ground of "arbitration and award”. Lazer, J. P., Gibbons, Thompson and Kunzeman, JJ., concur.