I respectfully dissent, and would affirm the order staying arbitration for the reasons stated by Special Term. This case involves the question left unanswered by the decision of the Court of Appeals (modfg order of App Div) in Matter of Candor Cent. School Dist. (Candor Teachers Assn.) (42 NY2d 266)1 viz., whether the *305Appellate Division’s interpretation of a dismissal clause, similar to the clause contained in article XX of the collective bargaining agreement involved here, as not applying to the automatic expiration of a probationary teacher’s contract, was correct. In holding the dismissal clause inapplicable, the Appellate Division stated (52 AD2d 400, 402): "By their irrational interpretation, the arbitrators have escalated the 'dismissal clause’ into a provision to submit failure to achieve tenure to binding arbitration. Tenure is not a matter which can be submitted to binding arbitration. [Citation omitted.] The irrationality of the arbitrators’ construction is demonstrated when we realize that Miller was not dismissed by petitioner. Miller’s employment ceased at the termination of her probationary period when she failed to obtain tenure. Under the circumstances, petitioner was not authorized to award tenure to Miller. After the District Superintendent of Schools notified her she was not being recommended for tenure, petitioner was powerless to grant her tenure. Her employment ceased by operation of law at the end of her probationary period and not by a dismissal by petitioner.”
Following the precept of the Court of Appeals in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.) (42 NY2d 509, 514) that in a public sector collective bargaining agreement, "it must be taken in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum”, I must conclude: (1) that the lapse of appellant Chadderdon’s probationary appointment and the termination of his services because tenure had not been granted was not a dismissal calling for the procedures set forth in article XX; and (2) that the board’s failure to follow the article XX procedures presented no arbitrable grievance. (See Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 59 AD2d 1042.)
Nor did the parties in the arbitration clause of the agreement (art XXI, § V, 5.4) contract to submit to the arbitrator legal questions such as those presented here in the construction of article XX. In my opinion, the clause making arbitrable an "alleged violation, misapplication, or misinterpretation of [the] agreement which cannot be resolved through the grievance procedure” (art XXI, § V, 5.4), refers to an action or *306decision of the board, which could constitute a grievance2 and not to questions concerning legal interpretations. Similar arbitration clauses and definitions of "grievance” were contained in the collective bargaining agreements in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.) (supra) and Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn. (supra) where the disputes were held not arbitrable.3 It should be noted that the agreements in Liverpool (supra), Honeoye Falls (supra) and in this case all lacked the unequivocal language contained in the Candor agreement4 in which the parties specifically contracted "to submit to arbitration disputes as to the interpretation and application of the collective bargaining agreement”. (Matter of Candor Cent. School District [Candor Teachers Assn.], supra, p 271.) Thus, in the case at bar, because of "the absence of clear, unequivocal agreement to the contrary” it must be presumed that the parties "did not intend to refer differences which might arise [concerning the legal interpretation of the collective bargaining agreement] to the arbitration forum.” (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. v United Liverpool Faculty Assn., supra.)
Dillon, Denman and Wither, JJ., concur with Marsh, P. J.; Hancock, J., dissents and votes to affirm in an opinion.
*307Order reversed, without costs, and respondents directed to proceed to binding arbitration.
. In Candor (supra) the Court of Appeals considered only the question of whether the arbitrators had exceeded their powers and not whether the dispute was arbitrable. In modifying the order of the Appellate Division, it was concerned only with the content of the award (p 270): "No challenge was or is now raised to the propriety of recourse to arbitration as provided in the collective bargaining agreements. The attack by the school district is focused only on the content of the award” and further (p 271): "We proceed, therefore, on the assumption that the terms of the dismissal clause were applicable to the termination of Mrs. Miller’s employment.”
Here, however, in its petition to stay arbitration, respondent has directly challenged the applicability of article XX of the collective bargaining agreement to the school board’s failure to grant appellant tenure.
. "Grievance” is defined as a "claim by a teacher or group of teachers in the negotiating unit based upon any event or condition affecting their welfare and/or terms or conditions of employment. However, only those grievances defined in section (3) shall be subject to arbitration.” (Collective bargaining agreement, art XXI, §11, subd 2.1.)
. In Liverpool, the agreement provided that the teacher and/or association, if not satisfied with the decision at Stage 3 "may submit the grievance to arbitration”. Grievance is defined as "any claimed violation, misinterpretation or inequitable application of the existing laws, rules, procedure regulations, administrative orders or work rules of the District”.
In Honeoye, the arbitration clause provided "only contractual agreements and disciplinary actions will be covered by Stage 4, other grievances will end at Stage 3.” Grievance is defined as "a claim by any teacher or group of teachers in the negotiating unit based upon any event or condition affecting their welfare and/or terms and conditions of employment, including but not limited to, any claimed violation, misinterpretation, misapplication or inequitable application of law, rules or regulations having the force of law, this agreement, policies, rules, by-laws, regulations, directions, orders, work rules, procedures, practices or customs of the Board of Education.”
. The arbitration clause in the Candor agreement provided:
"5th Stage—Binding Arbitration.
"The recommendations of the Board of Review will be accepted and be binding on both parties only as to the interpretation and application of the agreement itself.”