Raymond v. Walsh

Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered December 11, 2007 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

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

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination terminating his General Municipal Law § 207-c benefits. According to petitioner, the collective bargaining agreement (CBA) between respondents and the union representing petitioner required that a hearing be conducted before those benefits were terminated. We reject that contention. Although the CBA provides that union members have the right to a hearing to contest a determination to terminate benefits pursuant to section 207-c, it does not afford a union member the right to a hearing prior to the termination of such benefits. Indeed, we conclude that petitioner, by entering into the CBA through his union, waived his right to a pretermination hearing (see Antinore v State of New York, 49 AD2d 6 , 10 [1975], affd 40 NY2d 921 [1976]; Matter of Fortune v State of N.Y., Div. of State Police, 293 AD2d 154 , 158 [2002]; see generally Police Benevolent Assn. of N.Y. State Troopers, Inc. v Division of N.Y. State Police, 11 NY3d 96 , 103 [2008]). Because the petition was in the nature of mandamus to review rather than mandamus to compel the performance of a ministerial act required by law (cf. Matter of Heck v Keane, 6 AD3d 95 , 98-99 [2004]), the four-month stat