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

285
CA 13-01564
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF ARBITRATION BETWEEN ALDEN
CENTRAL SCHOOL DISTRICT, PETITIONER-APPELLANT,

                    AND                           MEMORANDUM AND ORDER

ALDEN CENTRAL SCHOOLS ADMINISTRATORS’
ASSOCIATION, RESPONDENT-RESPONDENT.


HODGSON RUSS LLP, BUFFALO (JEFFREY F. SWIATEK OF COUNSEL), FOR
PETITIONER-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOSEPH L. GUZA OF COUNSEL),
FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered February 1, 2013. The order, insofar as
appealed from, denied the petition for a stay of arbitration and
granted that part of the cross petition seeking to compel arbitration.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the petition is granted
and the cross petition is denied in its entirety.

     Memorandum: Petitioner commenced this proceeding seeking a stay
of arbitration pursuant to CPLR 7503, and respondent cross-petitioned
to compel arbitration of its grievance and for other relief. Supreme
Court denied the petition and granted that part of the cross petition
seeking to compel arbitration. We reverse the order insofar as
appealed from. The grievance in this case was filed by respondent on
behalf of a member whose position as principal of an elementary school
was abolished. The member was placed on the Preferred Eligibility
List and then hired, at a lower salary, as an assistant principal of a
middle school. Respondent filed a grievance on behalf of its member,
contending that her new position is sufficiently “similar” within the
meaning of Education Law § 2510 (3) (a) such that she is entitled to
the same level of pay. After petitioner denied the grievance,
respondent demanded arbitration under the parties’ collective
bargaining agreement (CBA). Petitioner then commenced this
proceeding.

     It is well settled that, in deciding an application to stay or
compel arbitration under CPLR 7503, the court is concerned only with
the threshold determination of arbitrability, and not with the merits
of the underlying claim (see CPLR 7501; Matter of Board of Educ. of
                                 -2-                           285
                                                         CA 13-01564

Watertown City Sch. Dist. [Watertown Educ. Assn.], 93 NY2d 132,
142-143). In making the threshold determination of arbitrability, the
court applies a two-part test. It first determines whether “there is
any statutory, constitutional or public policy prohibition against
arbitration of the grievance” (Matter of City of Johnstown [Johnstown
Police Benevolent Assn.], 99 NY2d 273, 278). “If no prohibition
exists,[the court then determines] whether the parties in fact agreed
to arbitrate the particular dispute by examining their collective
bargaining agreement” (Matter of County of Chautauqua v Civil Serv.
Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit
6300, Chautauqua County Local 807, 8 NY3d 513, 519; see Matter of
Mariano v Town of Orchard Park, 92 AD3d 1232, 1233).

     Here, we agree with petitioner that the Commissioner of Education
has primary jurisdiction over the parties’ dispute, and that
arbitration is therefore prohibited by public policy. As we have
previously noted, “ ‘the Commissioner of Education has the specialized
knowledge and expertise to resolve the factual issue of whether the .
. . former position and the new position are similar within the
meaning of Education Law § [2510 (3) (a)]’ ” (Matter of DiTanna v
Board of Educ. of Ellicottville Cent. Sch. Dist., 292 AD2d 772, 773,
lv denied 98 NY2d 605; see Matter of Donato v Board of Educ. of
Plainview, Old Bethpage Cent. Sch. Dist., 286 AD2d 388, 388). Based
on his or her specialized knowledge and expertise, the Commissioner of
Education should “resolve, in the first instance,” the issue of fact
whether two positions are sufficiently similar under Education Law §
2510 (Matter of Ferencik v Board of Educ. of Amityville Union Free
Sch. Dist., 69 AD3d 938, 938; see Matter of Moraitis v Board of Educ.
Deer Park Union Free Sch. Dist., 84 AD3d 1090, 1091; Matter of Hessney
v Board of Educ. of Pub. Schs. of Tarrytowns, 228 AD2d 954, 955, lv
denied 89 NY2d 801). Respondent’s reliance on Matter of Board of
Educ. v Portville Faculty Assn. (96 AD2d 739) is misplaced, inasmuch
as the dispute in that case involved an employee’s right to tenure,
and not whether two positions are similar in nature and duties.

     In light of our determination, we need not address petitioner’s
additional contention that there is no reasonable relationship between
respondent’s grievance and the parties’ CBA.




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
