Cox v Subway Surface Supervisors Assn.

Cox v Subway Surface Supervisors Assn. 2010 NY Slip Op 00076 [69 AD3d 438] January 7, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

Wade Cox et al., Appellants,
v
Subway Surface Supervisors Association et al., Respondents.

—[*1] Schwartz, Lichten & Bright, P.C., New York (Arthur Z. Schwartz of counsel), for appellants.

Stuart Salles, New York, for Subway Surface Supervisors Association, respondent.

Office of the General Counsel, Brooklyn (Francine E. Menaker of counsel), for New York City Transit Authority, respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered July 23, 2008, which granted defendants' motions to dismiss the complaint and directed the entry of judgment in their favor, unanimously affirmed, without costs.

Plaintiffs failed to state a claim for breach of the duty of fair representation against defendant Association. At the time defendants negotiated and ratified the collective bargaining agreement at issue, plaintiffs were employed as console dispatchers in defendant Transit Authority's Rail Command Center. It is uncontested that they were neither members of, nor represented by, the Association's bargaining unit, so the Association owed them no duty of fair representation. Even were such a duty owed, the Association did not act arbitrarily, capriciously or in bad faith by protecting the "pick seniority" of its current members (see Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, 195-196 [1984]; Matter of Higgins v La Paglia, 281 AD2d 679, 681 [2001], appeal dismissed 96 NY2d 854 [2001]).

The claim against the Transit Authority, which is in the nature of mandamus, is untimely and fails to assert a clear legal right to the relief requested (see Matter of Powers v City of New York, 262 AD2d 246 [1999], lv denied 94 NY2d 751 [1999]). In any event, since there was no [*2]breach of duty by the Association, the claim that the Transit Authority was in complicity with that breach must fail. Concur—Mazzarelli, J.P., Friedman, Nardelli, Renwick and RomÁn, JJ. [Prior Case History: 2008 NY Slip Op 32071(U).]