dissent and vote to reverse in a memorandum by Casey, J. Casey, J. (dissenting). Although petitioner’s knowing and voluntary acceptance of the terms of the settlement agreement resulted in an express waiver of his right to pursue an administrative appeal under either the Civil Service Law or the collective bargaining agreement (see, Matter of Abramovich v Board of Educ., 46 NY2d 450, cert denied 444 US 845), we disagree with the majority’s conclusion that the petition fails to state a claim. Petitioner’s employment was terminated pursuant to an administrative determination that his attendance subsequent to the settlement agreement was unsatisfactory and, as noted above, this determination was not subject to further administrative appeal. A final administrative determination is ordinarily subject to judicial review (CPLR art 78), and there is nothing in the settlement agreement to establish that petitioner knowingly and voluntarily relinquished the right to pursue this remedy. The petition alleges that respondents’ determination is arbitrary and capricious, with factual allegations to support this claim,* thereby raising an issue appropriate to an article 78 proceeding (CPLR 7803 [3]; see, Matter of Lancto v Saranac Lake Cent. School Dist., 102 AD2d 913). The motion to dismiss for failure to state a claim should, therefore, be denied and respondents should be directed to submit an answer. The Abramovich case does not require a contrary result, for the only issue decided therein was whether a tenured teacher may, as part of a stipulation in settlement of a disciplinary proceeding brought against him, waive his right to the protection offered by Education Law § 3020-a.
These allegations are directed at the substantive merits of respondents’ determination that petitioner’s attendance was unsatisfactory, as distinguished from a claim of procedural infirmity based upon the denial of the contractual and statutory protections, which petitioner waived in the settlement agreement.