Gorga v Amityville Teachers' Assn.

[*1] Gorga v Amityville Teachers' Assn. 2005 NY Slip Op 51508(U) [9 Misc 3d 1112(A)] Decided on July 1, 2005 Supreme Court, Suffolk County Loughlin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2005
Supreme Court, Suffolk County

MARIETTA GORGA, Plaintiff,

against

AMITYVILLE TEACHERS' ASSOCIATION, Defendant.



05-01780



GRUNDFAST & MORRISON, ESQS.

Attorneys for Plaintiff

8 Manor Road

PO Box 971

Smithtown, NY 11787

JAMES R. SANDNER, ESQ.

Attorney for Defendant

52 Broadway, 9th Floor

New York, NY 10004-1603

Daniel J. Loughlin, J.

ORDERED, that the motion by defendant for an order dismissing the complaint is determined as follows.

The plaintiff is a teacher who is a member of the defendant Amityville Teachers' Association. The defendant entered into a collective bargaining agreement with the Board of Education of the Amityville School District. The agreement provided, inter alia, that a tenured teacher may be eligible for up to 200 days from a sick leave bank to be established and administered by the defendant. The plaintiff applied for and was granted 33 days of sick leave in 2002. Thereafter, the plaintiff applied for additional sick leave benefits which were denied by the defendant. The plaintiff appealed and was denied for the final time on April 29, 2003. The plaintiff commenced this action in January 2005 for breach of contract. The defendant moves to dismiss the complaint asserting, inter alia, that the complaint fails to state a cause of action because her only claim against the union would be for a breach of the duty of fair representation and that any such cause of action is time-barred.

The plaintiff contends that she is not asserting a claim for breach of the duty of fair representation. The plaintiff claims that this is a simple breach of contract action and that she is asserting a claim as a third party beneficiary of the agreement between the defendant and the Board. However, even assuming that the plaintiff is a third party beneficiary, she has not identified any breach of the collective bargaining agreement. The contract merely provided for the establishment of a sick leave bank and assigned the administration of the program to the defendant. A union member has no cause of action against a union for breach of contract or negligence arising out of the performance of duties assigned under the collective bargaining agreement; her sole remedy is an action for breach of fair representation (see Herrington v CSEA, 130 AD2d 961 [4th Dept 1987]; see also Dolce v Bayport-Blue Point Union Free School Dist., 286 AD2d 316 [2d Dept 2001]; McClary v CSEA, 133 AD2d 522 [4th Dept 1987]; Clissuras v City of New York, 131 AD2d 717 [2d Dept 1987]). The gravamen of the plaintiff's complaint appears to be that the defendant arbitrarily denied her request for benefits under the sick leave bank program. An allegation that a union's conduct was arbitrary, discriminatory or in bad faith is an element of a cause of action for breach of the duty of fair representation (see Lundgren v Kaufman Astoria Studios, 261 AD2d 513 [2d Dept 1999]; Ponticello v County of Suffolk, 225 AD2d 751 [2d Dept 1996]). Thus, the plaintiff's claim, in essence, is for breach of the duty of fair representation, which is governed by the four month Statute of Limitations in CPLR 217(2)(a) (see Dolce v Bayport-Blue Point Union Free School Dist., supra; Roman v City Employees Union Local, 300 AD2d 142 [1st Dept 2002]). The plaintiff's final appeal was denied by the defendant on April 29, 2003 and the plaintiff did not commence this action until January 2005. Therefore, the plaintiff's claim is untimely.

Accordingly, the defendant's motion is granted and the complaint is dismissed.

Dated: July 1, 2005

DANIEL J. LOUGHLIN, J.S.C. [*2]

X FINAL DISPOSITION NON-FINAL DISPOSITION