        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

502
CA 12-01967
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF THE ARBITRATION BETWEEN
BOARD OF EDUCATION OF THOUSAND ISLANDS
CENTRAL SCHOOL DISTRICT,
PETITIONER-RESPONDENT,

                    AND                           MEMORANDUM AND ORDER

THOUSAND ISLANDS EDUCATION ASSOCIATION,
RESPONDENT-APPELLANT,
AND AMERICAN ARBITRATION ASSOCIATION,
RESPONDENT.


RICHARD E. CASAGRANDE, LATHAM (PAUL D. CLAYTON OF COUNSEL), FOR
RESPONDENT-APPELLANT.

O’HARA, O’CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), entered August 30, 2011 in a proceeding pursuant to
CPLR article 75. The order granted the petition and permanently
stayed the arbitration demanded by respondent-appellant.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner, Board of Education of Thousand Islands
Central School District (TICSD), commenced this proceeding pursuant to
CPLR article 75 seeking a permanent stay of arbitration. Contrary to
the contention of respondent Thousand Islands Education Association
(TIEA), Supreme Court properly granted the petition. In September
2006, Lonnie Shippe was hired as a probationary teacher at TICSD. At
the end of the three-year probationary period, Shippe was notified
that he would not be recommended for tenure by the Superintendent. In
lieu of termination, on April 1, 2009, TICSD, Shippe and TIEA entered
into a Juul agreement, which extended the probationary period for one
year (see Matter of Juul v Board of Educ. of Hempstead School Dist.
No.1, Hempstead, 76 AD2d 837, 838, affd for reasons stated 55 NY2d
648, 649). At the expiration of that agreement, the parties entered
into a second Juul agreement that extended Shippe’s probationary
period for a fifth year and, as relevant herein, TIEA in exchange
“waive[d] any right it may have to pursue a grievance under the
collective bargaining agreement [CBA] between the TIEA and the
Superintendent relative to the deferral of the Superintendent’s tenure
                                 -2-                           502
                                                         CA 12-01967

recommendation, [or] the termination of [Shippe’s] employment.” Near
the end of his fifth probationary year, Shippe was informed by the
Superintendent that he would not be recommended for tenure and that
his appointment as a probationary teacher with TICSD would end on a
specified date. TIEA filed a grievance on behalf of Shippe contesting
his termination under various provisions of the CBA, and the grievance
was denied by TICSD. TIEA then served a demand for arbitration,
whereupon TICSD brought this proceeding seeking a permanent stay of
the arbitration. The court, agreeing with TICSD that a valid
agreement to arbitrate this particular dispute no longer existed,
granted the petition. We affirm.

     Here, there is no dispute that the arbitration claim with respect
to the subject matter at issue is authorized under the Taylor Law
(Civil Service Law art 14) (see Matter of Board of Educ. of Watertown
City Sch. Dist. [Watertown Educ. Assn.], 93 NY2d 132, 137-138). Thus,
in accordance with the applicable two-step inquiry (see id.), it must
next be determined whether “such authority was in fact exercised and
whether the parties did agree by the terms of their particular
arbitration clause to refer their differences in this specific area to
arbitration” (Matter of Acting Supt. of Schs. of Liverpool Cent. Sch.
Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 513). It is
undisputed that, absent the Juul agreement, Shippe’s termination would
be subject to the grievance and arbitration procedures contained in
the CBA. However, contrary to TIEA’s contention, we conclude that the
Juul agreement clearly manifested an intent to exclude the subject
matter of Shippe’s termination, including the just cause, teacher
improvement and code of ethics grounds advanced by TIEA, from the
provisions of the CBA relating to grievances and arbitration (see
Matter of Campbell [State of New York], 37 AD3d 993, 994-995; see
generally Matter of Marshall v Pittsford Cent. Sch. Dist., 100 AD3d
1498, 1500, lv denied 20 NY3d 859).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
