De Ciutiis v. East Meadow Union Free School District No. 3

In a proceeding pursuant to CPLR article 78, inter alia, to declare void and unlawful a contract provision between respondents school district and teachers association which allegedly provides for the withholding and deferral of salary, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Burstein, J.), entered February 27, 1981, which dismissed the petition. Judgment modified, on the law, by deleting the provision dismissing the petition, and substituting therefor provisions (1) converting this proceeding into an action for a declaratory judgment and related relief and (2) declaring that the contested contract provision is valid, and otherwise dismissing the action. As so modified, judgment affirmed, without costs or disbursements. Since the issue raised by petitioners requires us to determine whether a provision of the collective bargaining agreement violates the Constitution and/or the Education Law, this CPLR article 78 proceeding should be converted to an action for a declaratory judgment (see Matter of Reese v Lombard, 47 AD2d 327; cf. 92-07 *841Rest, v New York State Liq. Auth., 80 AD2d 603). We determine that the matter in question is a term and condition of employment properly subject to negotiation between the respondent school district and the respondent teachers association (see Matter of Board ofEduc. v Yonkers Federation of Teachers, 40 NY2d 268, 273). The resulting contract provision does not conflict with statute, decisional law, or public policy, nor is it impermissibly vague (see Matter of Board of Educ. v Nyquist, 48 NY2d 97, 104-105). Bracken, J. P., Brown, Niehoff and Rubin, JJ., concur.