Board of Education of the Depew Union Free School District, Respondent, v. Depew Teachers Organization, Inc., Appellant

Board of Education of the Depew Union Free School District, Respondent, v Depew Teachers Organization, Inc., Appellant. (Appeal No. 1.) [MAJORITY] Order unanimously affirmed without costs. Memorandum: The court correctly denied defendant’s motion to dismiss plaintiff’s declaratory judgment action for failure to state a cause of action, because the court had jurisdiction to declare the rights of the parties (see, Fillman v Axel, 63 AD2d 876). Plaintiff sought a declaration that a June 26th memorandum of understanding bound the parties and that memoranda of June 25th and July 22nd did not. The court’s denial of defendant’s alternative motion to compel arbitration was proper because defendant failed to cite any agreement in the record that can be deemed an agreement to arbitrate the issue of which agreement applies, and a court directing arbitration in the field of public employment must find that an agreement to arbitrate is " 'express, direct and unequivocal’ ” (Matter of South Colonie Cent. School Dist. [South Colonie Teachers Assn.], 46 NY2d 521, 526, rearg denied 47 NY2d 952). (Appeal from order of Supreme Court, Erie County, Rath, Jr., J.—dismiss complaint.) Present—Dillon, P. J., Denman, Pine, Lawton and Davis, JJ.