
    In the Matter of Jennifer Davis et al., Respondents, v Albert Thompson, as Superintendent of the Buffalo City School District, et al., Appellants.
   — Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly dismissed the CPLR article 78 petition but improperly conditioned that dismissal on respondents’ consent to the filing of grievances by petitioners and respondents’ waiver of any objections based upon timeliness or the choice of forum provision of the collective bargaining agreement (see, article 23 [2] [h]). Inasmuch as neither petitioner had filed or attempted to file a grievance pursuant to the collective bargaining agreement and in the absence of special circumstances, it was inappropriate for the court to place any conditions on dismissal of the petition (see, Matter of Cantres v Board of Educ., 145 AD2d 359, 360; Matter of Reinig v Laehy, 101 AD2d 688; see also, Matter of Elliott v Arlington Cent. School Dist., 143 AD2d 662). Supreme Court’s judgment is therefore modified by striking those conditions. (Appeal from Judgment of Supreme Court, Erie County, Francis, J. — Dismiss Petition.) Present — Callahan, J. P., Green, Pine and Boehm, JJ.  