Cruz v United Fedn. of Teachers

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Cruz v United Fedn. of Teachers 2011 NY Slip Op 33499(U) December 23, 2011 Supreme Court, New York County Docket Number: 103386/11 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 1141201 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART I Index Number : IO33861201I CRUZ, JOSEFINA INDEX NO. vs MOTION DATE UNITED FEDERATION OF TEACHERS MOTION 8EQ. NO. Sequence Number : 001 - DlSM ACTION/ INCONVENIENT FORUM 1 Notlce of MotlonlOrder to Show Cause Aniwerlng Affldavltr - Exhlblts -Affldrvltm - Exhlblts IWd. IWd. INo(@. Replylng Affldrvlta Upon the foregolng papem, It Is ordemd that this motlon Is FILED NEW YORK COUNTY CLERKS OFFICE I. CHECK ONE: ..................................................................... ECASE DISPOSED ........................... MOTION IS: 0GRANTED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. 0DO NOT POST NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE DENIED [* 2] Index No. 103386/11 Plaintiff, DECISION and ORDER - against UNITED FEDERATION OF TEACHERS, NEW YORK STATE UNITED TEACHERS, JAMES SANDNER, ESQ., MITCHELL RUBINSTEIN, ESQ. and CHARLES MOERDLER, ESQ., Mot. Seq. 001 & 002 FILED JAN 0 3 2012 Defendants, e---------l___l-----_______1__11________-------------------------- HON. EILEEN A. RAKOWER, J.S.C. X NEW YORK COUNTY CLERKS OFFICE Josefina Cruz ( Plaintiff ) was a tenured teacher with the New York City Department of Education until her termination in 2008, and was a member of defendant United Federation of Teachers ( UFT ). Plaihtiff states in her complaint that in 2006, charges were preferred against her alleging unsatisfactory performance, misconduct or other disciplinary charges. Based upon the charges against her, Plaintiff was placed on an Ineligible Inquiry List, was removed from her teaching responsibilities, and was placed in a Temporary Reassignment Center - otherwise known as a rubber room. Plaintiff states that she provided UFT with timely notice of the charges and her reassignment. UFT then called upon defendant New York State Unified Teachers ( NYSUT ) to represent Plaintiff in her Education Law $3020-a hearing. Defendants Sandner and Rubinstein were assigned to be Plaintiffs attorneys concerning her disciplinary charges. Plaintiff claims that Sandner and Rubinstein failed to adequately represent Plaintiff during the course of her disciplinary proceeding. Specifically she states that during the two year pendency of her disciplinary charges, they never moved to have the charges dismissed or dropped; and that during the proceedings, they failed to raise jurisdictional or other objections to the disciplinary hearing process. 1 [* 3] c In 2008, during her- disciplinary proceeding, Plaintiff, along with other teachers, filed a lawsuit against UFT alleging, inter alia, that UFT (1) failed to honor its obligations to Plaintiff and to other teachers who were reassigned to the rubber room and facing disciplinary charges; (2) was discriminating against Plaintifc and (3) that UFT was failing to fairly represent her. Plaintiff alleges that, in response to, and in retaliation for commencing the lawsuit against UFT, defendant Moerdler, a UFT attorney, advised NYSUT, Sandner and Rubinstein that they should end their representation of Plaintiff. Sandner and Rubinstein complied and moved to withdraw as Plaintiffs attorneys, citing a conflict of interest. After the arbitrator granted Sandner and Rubinstein s motion to withdraw, Plaintiff proceeded pro se. After the hearing, the Arbitrator issued a decision dated December 1,2008 finding Plaintiff guilty of ten out of the 14 specifications brought against her (see Cruz v. New York City Dept. of Educ., 20 10 NY Slip Op 50016U [Sup. Ct., N.Y. Co. 20101) (denying Plaintiffs Article 75 petition challenging the termination). Plaintiff claims that her termination was the result of her pro se status and her inability to adequately defend herself. Plaintiff commenced this action on March 18, 20 1 1. She asserts three causes of action against Sandner and Rubinstein sounding in malpractice, breach of contract, and violation of General Business Law ( GBL ) $349. NYSUT is also named in the GBL claim. As against UFT, Plaintiff asserts causes of action sounding in breach of contract, tortious interference with contract, and breach of the duty of fair representation ( DFR )). Moerdler is also named in the tortious interference claim. Presently before the court are motions to dismiss by UFT, NYSUT, Sandner and Rubinstein pursuant to CPLR §3211(a)(5), (7) & (8) on the one hand ( UFT movants ); and by Moerdler pursuant CPLR $321 l(a)(7) & (3) on the other. With respect to Plaintiffs DFR claim, UFT movants state that the action is time-barred by CPLR $217(2)(a). UFT movants further claim that Plaintiff s DFR claim fails on the merits because she fails to adequately plead that she was damaged as a result of their actions. UFT movants claim that Plaintiff s remaining claims fail as a matter of law because her sole remedy is a DFR claim. UFT movants also contend that these claims fail on the merits. Lastly, with respect to UFT and NYSUT, UFT movants claim that they have not been properly served by Plaintiff. In his motion to dismiss, Moerdler first states that he was never personally 2 [* 4] served by Plaintiff, as she claims in her Declaration of Service. On the merits, Moerdler claims that Plaintiffs tortious interference claim must be dismissed because (1) there is no underlying contract between Plaintiff and UFT or NYSUT; (2) even if there was an underlying contract, the claim is barred because Plaintiff is limited to a DFR claim; and (3) in any event, assuming there was a valid contract and that Plaintiff could maintain a breach of contract action, Moerdler s alleged conduct was wholly appropriate. CPLR $32 11 provides, in relevant part: a party may move for judgment dismissing one or more causes of action asserted against him on the ground that: the cause of action may not be maintained because of ... statute of limitations; or the pleading fails to state a cause of action; or the court has not jurisdiction of the person of the defendant ,,.. In determining whether dismissal is warranted for failure to state a cause-of action, the court must accept the facts alleged as true ... and determine simply whether the facts alleged fit within any cognizable legal theory. (People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 3 09 AD2d 9 1[ 1st Dept. 2003I) (internal citations omitted) (see CPLR $321 1[a][7]). Here, the kourt finds that Plaintiffs complaint must be dismissed. Petitioner s DFR claim is clearly barred by the four-month statute of limitations set forth in CPLR 52 17(2)(a), which provides: Any action or proceeding against an employee organization subject to article fourteen of the civil service law or article twenty of the labor law which complains that such employee organization has breached its duty of fair representation regarding someone to whom such employee organization has a duty shall be commenced within four months of the 3 [* 5] date the employee or former eniployee knew or should have known that the breach has occurred, or within four months of the date the employee or former employee suffers actual harm, whichever is later. Further, the court notes that, even if timely, Plaintiff fails to state a DFR cause of action. [IJf the union has processed a contract grievance in an arbitrary and negligent manner, resulting in an adverse determination in the arbitration forum... the employee may ... sue the union and recover a money judgment for those damages which directly resulted from the union s misconduct .... It is obvious that, in order to recover damages from a union pursuant to a cause of action alleging a breach of the duty of fair representation, the employee must prove the merits of the underlying grievance against the employer, the proper prosecution of which the union is alleged, by its misconduct, to have foreclosed (Sinicropiv. N. Y.State Pub. Empl. Rels. Bd., 125 A.D.2d 386,388-89 [2nd Dept. 19861). Plaintiff fails to allege facts that establish that her union attorneys engaged in misconduct of any kind, On the contrary, the facts pleaded establish that Sandner and Rubinstein withdrew from their representation of Plaintiff after she sued the UFT alleging, among other things, that UFT was failing to properly represent her, thereby creating a conflict of interest. Moreover, the court notes that the union attorneys withdrew only after duly moving for, and being granted leave to withdraw by the arbitrator in Plaintiffs $3020-a proceeding. Nor does Plaintiff sufficiently plead that she had a valid defense to the charges - procedurally or substantively - which, had the union attorneys presented, would have resulted in a more favorable outcome in her disciplinary proceeding. Indeed, the court notes that, in denying her Article 75 petition, Justice Scarpulla found that the petition was both procedurally infirm and lacks substance on the merits (Cruz at *S) (emphasis added). Plaintiff s additional claims are preempted by her DFR claim, and may not be asserted in order to circumvent the applicable four-month statute of limitations (see Roman v. C i q Emples. Union Local 237, 300 A.D.2d 142 [lst Dept. 20021 ( The expedient of characterizing a claim for breach of the duty of fair representation as one 4 [* 6] for breach of contract is unavailing to avoid the four-month limitations period prescribed in CPLR 2 17(2)(a) ); Mamorella v. Derkasch, 276 A.D.2d 152, 155 [4th Dept. 20003 ( attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services performed constitute part of the collective bargaining process.. .. Plaintiff is limited to bringing an action against the union for breach of the duty of fair representation. ). Wherefore it is hereby ORDERED that defendants motions to dismiss are granted and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. This constitutes the decision and order of the court. All other relief requested is denied. Dated: December 23,20 11 5

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