Morton v Mulgrew

Morton v Mulgrew 2016 NY Slip Op 07270 Decided on November 3, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 3, 2016
Renwick, J.P., Feinman, Gische, Kapnick, JJ.
2134 6522111/14

[*1]Dianna Morton, Plaintiff, Grant Tedaldi, et al., Plaintiffs-Appellants, —

v

Michael Mulgrew, etc., Defendant-Respondent.

Salem & Shimko, Brooklyn (Daniel Shimko of counsel), for appellants.

Stroock & Stroock & Lavan LLP, New York (Dina Kolker of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered July 23, 2015, which, to the extent appealed from, granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.

The complaint alleges that New York United Federation of Teachers, Local 2, AFT, AFL-CIO, breached the duty of fair representation to plaintiffs by ratifying, on June 3, 2014, a collective bargaining agreement that provided for wage increases retroactive to the October 31, 2009 expiration of the preceding agreement both for members employed on June 3, 2014 and for members who had retired after October 31, 2009, but not for former members, such as plaintiffs, who had resigned from their employment between those two dates.

Cognizant of the obstacle to this suit presented by the Martin rule, which "limit[s] such suits . . . to cases where the individual liability of every single member can be alleged and proven" (Martin v Curran, 303 NY 276, 282 [1951]; General Associations Law § 13), plaintiffs argue that the rule was abrogated by the enactment of the Taylor Law in 1967 (Civil Service Law § 200 et seq.), or by its 1990 amendment. This argument is unavailing in light of the recent decision of the Court of Appeals upholding the Martin rule (even as it questioned the rule's "continued utility or wisdom") (Palladino v CNY Centro, Inc., 23 NY3d 140, 150 [2014]).

Given the foregoing, we need not reach plaintiffs' remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2016

CLERK