Salemeh v Toussaint

[*1] Salemeh v Toussaint 2003 NY Slip Op 51737(U) Decided on June 20, 2003 Supreme Court, New York County Friedman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 20, 2003
Supreme Court, New York County

WAJEH SALEMEH, Plaintiff,

against

ROGER TOUSSAINT, president, on behalf of LOCAL 100 TRANSPORTATION WORKERS UNION OF AMERICA, SONNY HALL, president on behalf of TRANSPORT WORKERS UNION OF AMERICA, FRANK McCANN JR., JOHN DOES 1-146,000, fictitious persons, and ENTITIES 1-5, fictitious entities, Defendants.



118056/01

Marcy S. Friedman, J.

In this personal injury action, plaintiff, a security guard employed by non-party New York Waterways ("Waterways"), alleges that he was assaulted on October 4, 2000, while attempting to remove members of defendant Local 100 Transportation Workers Union of America ("Local 100") and defendant Transport Workers Union of America ("TWU") from Waterways' property during a union organizing activity. In particular, plaintiff alleges that defendant Frank McCann Jr. ("McCann"), a member of both defendant unions, and the "John Doe defendants," also members, punched plaintiff in the face and neck. Defendant Sonny Hall, in his representative capacity as president of TWU, moves to dismiss the complaint against TWU, pursuant to CPLR 3211(a)(7), for failure to state a cause of action.

The second amended complaint ("complaint") alleges twelve causes of action against the TWU: The first, second, third, fifth, sixth, seventh, and eighth causes of action allege intentional torts for assault, battery, intentional infliction of emotional distress, false imprisonment, conspiracy to commit trespass, assault and battery, prima facie tort, and aiding and abetting the assault, respectively. The fourth, tenth, and eleventh causes of action against TWU allege negligent infliction of emotional distress and negligence, respectively. The ninth cause of action alleges vicarious liability, while the twelfth cause of action seeks punitive damages for the trespass and assault.

It is well settled that a motion to dismiss under CPLR 3211(a)(7) "must be denied if from the pleadings' four corners 'factual allegations are discerned which taken together manifest any cause of action cognizable at law.' " (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002] [internal citations omitted].) In determining a motion to dismiss, the court must [*2]"liberally construe the complaint, and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion. [The court must] also accord plaintiffs the benefit of every possible favorable inference." (Id.)

Intentional Torts

Under New York law, it has long been held that actions against a union for "tortious wrongs" are limited "to cases where the individual liability of every single member can be alleged and proven." (Martin v Curran, 303 NY 276, 282 [1951].) This limitation on a union's liability grows out of the common law precept, codified by statute (see General Associations Law § 13), that, for purposes of liability, an unincorporated association such as a union has no legal identity independent of its members, and that " 'only those members are liable who expressly or impliedly with full knowledge authorize or ratify the specify acts in question'." (Martin, 303 NY at 282 [internal citations omitted].) In order to hold a union liable for the torts of its members, a plaintiff must thus plead and prove that the unlawful acts were "authorized or ratified by each member of the association." (See Modeste v Local 1199, Drug, Hosp. & Health Care Empls. Union, 38 F 3d 626, 627 [2d Cir 1994][recognizing the Martin rule), affg 850 F Supp 1156 [SD NY] for reasons stated below.) [FN1]

Relying on Browne v International Bhd. of Teamsters (203 AD2d 13 [1st Dept 1994]), plaintiff argues in effect that Martin has been modified. In Browne, which involved an assault against a security guard by a union member during a strike, the Court upheld a jury charge that in order "[t]o place responsibility on the union," the plaintiff must prove "that the union was aware [on the date of the assault] that violence or threats of violence had become an every day occurrence in the strike and that the union either openly encouraged such violence and threats or deliberately failed to check it or give orders countermanding it." (Id. at 14.) Browne held that the stricter Labor Law § 807 standard for imposing liability on a union for the acts of its members, which requires proof of the union's authorization or ratification of such acts, applies only to injunctions issued in labor disputes, and not to damage claims against the union. (Id. at 14-15.) However, Browne neither cites nor discusses Martin, and it therefore does not appear from the face of the opinion that the applicability of Martin was raised. Browne is thus "not sufficiently definitive to persuade this court that Martin no longer applies." (Building Indus. Fund v Local Union No. 3, Int'l. Bhd. of Elect. Workers., 992 F Supp 192, 195-196 [ED NY 1996].)

Plaintiff's reliance on Yellow Bus Lines, Inc. v Drivers, Chauffeurs & Helpers Local Union 639 (883 F 2d 132 [DC Cir 1989], cert denied 501 US 1222 [1991]) is similarly unavailing. Yellow Bus involved a claim against a union for malicious destruction of an employer's property by union members during a strike. This case elucidated the authorization or ratification standard under the federal Norris-LaGuardia Act § 6 (29 U.S.C. §106) for imposition upon a union of liability for the acts of its agents, and held that specific proof of "knowing tolerance" by union officials of a member's tortious acts was not required under section 6 to hold [*3]the union liable where the member was "clothed with plenary authority to direct the strike on behalf of the union." (Id. at 136.) While the Yellow Bus court held that section 6 "applies in 'federal court adjudications of state tort claims arising out of labor disputes' " (id. at 135 [internal citations omitted]), the court did not determine the effect of section 6 on state substantive law. (See Modeste, 850 F Supp at 1167.) Moreover, there is subsequent, persuasive authority that section 6 does not preempt the Martin requirement that a plaintiff plead and prove the liability of each union member in order to hold the union liable for the unlawful acts of its members, even in a federal court adjudication of pendent New York state law claims. (Id. at 1158.)

The court concludes that Martin is still good law in New York. (See A. Terzi Prods., Inc., 2 F Supp 2d at 491; Modeste, 850 F Supp at 1163 n 5; R.M.Perlman, Inc. v New York Coat, Suit, Dresses, Rainwear & Allied Workers' Union Local 89-22-1, 789 F Supp 127, 132 [SD NY 1992]; Walsh v Torres-Lynch, 266 AD2d 817 [4th Dept 1999]). Plaintiff's complaint must therefore be tested by its requirements.

In an apparent effort to comply with the Martin pleading requirements, the complaint alleges that "[t]he entire Local 100 and International Union [TWU] membership authorized and/or ratified the tortious conduct of Frank McCann and John Does 1-40 by not taking any adverse action against them." (Compl., ¶ 29.) Plaintiff's first through ninth causes of action contain similar allegations. (Id. at ¶¶ 33, 39, 46, 55, 60, 69, 77, 84, 91.) The complaint further alleges that "[u]pon information and belief, no adverse action was taken against Frank McCann and John Does 1-40 after they assaulted the Plaintiff while chanting Union slogans and propaganda" (id. at ¶27), and that defendant McCann and others are "still members of the union." (Id. at ¶28.)

These allegations fail to meet the stringent pleading requirements of Martin. As the complaint fails to allege any objective facts supporting the conclusory assertion that the entire TWU membership authorized or ratified its members' tortious acts, it is insufficient to state a cause of action against TWU for intentional tort. (See L. Magarian & Co., 245 AD2d 69 [1st Dept 1997].) Moreover, the complaint does not contain any factual allegations that TWU's members had knowledge of the alleged assault - a requisite of ratification. (See Martin, 303 NY at 282; A.Terzi Prods., Inc., 2 F Supp 2d at 492. See also Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126 [1990].)

Nor is this a case in which the evidence submitted in opposition to TWU's motion to dismiss is sufficient to cure these deficiencies in the pleading. Plaintiff cites deposition testimony of defendant Hall that TWU could have funded the rally at Waterways (Hall Dep. at 16); that Local 100 and TWU had knowledge that the incident had occurred, but neither Local 100 nor TWU took disciplinary action against Frank McCann or any of its members after the incident (Hall Dep. at 19); and that the TWU did not have a standard disciplinary procedure for dealing with such incidents. (Dep. Of Michael O'Brien [TWU vice president] at 11.) While affidavits or other evidence "may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]), the deposition testimony falls far short of showing that the entire membership acquired knowledge of [*4]the assault on plaintiff and then ratified it.[FN2] Further, although plaintiff requested leave to replead at the oral argument of the instant motion, this request must be denied, given the absence of any evidentiary showing in plaintiff's opposition papers that plaintiff can prove that the entire membership of TWU, with full knowledge, ratified the tortious conduct of McCann or other union members. (See Thea v Thea, 284 AD2d 245 [1st Dept 2001].)

Plaintiff's intentional tort causes of action against TWU must accordingly be dismissed. In view of this holding, the court does not reach TWU's alternative argument that the intentional tort claims are barred by the statute of limitations.[FN3]

Vicarious Liability and Negligence Claims Against TWU

Plaintiff's ninth cause of action alleges that TWU is vicariously liable for the assault and battery on plaintiff. As this claim is based on an intentional tort, it must be dismissed due to plaintiff's failure to satisfy the Martin pleading requirements.

Plaintiff's fourth cause of action for negligent infliction of emotional distress must likewise be dismissed. This cause of action alleges that McCann and the John Doe defendants surrounded and threatened plaintiff, negligently exposed him to an unreasonable risk of bodily injury, and assaulted him. It is well settled that " 'once intentional offensive contact has been established, the actor [is not liable for] negligence, even when the physical injuries may have been inflicted inadvertently,' " and that "a lack of care 'does not convert the action from intentional tort to negligence'." (Messina v Matarasso, 284 AD2d 32, 36 [1st Dept 2001][citing Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376-377 [3d Dept 1987]; Wertzberger v City of New York, 254 AD2d 352 [2d Dept 1998].) Here, the negligent infliction cause of action is clearly based on the intentional torts of assault and trespass of TWU's members. Thus, as the complaint fails to comply with the Martin pleading requirements for such intentional torts, the cause of action must be dismissed.

The tenth and eleventh causes of action are for direct negligence. The tenth alleges that plaintiff was injured as a result of Local 100's and TWU's breach of their duty to conduct their organizing efforts in a reasonably safe manner, while the eleventh alleges injury as a result of Frank McCann's breach of the same duty. These causes of action are likewise based on plaintiff's injury, due to an assault, during the union activity. As held above, plaintiff may not plead negligence against TWU for the alleged assault by its members.

Moreover, to the extent that these causes of action can be construed as alleging TWU's negligent supervision of McCann or its members, "it is settled law that a necessary element of a negligent supervision claim requires a showing that the defendant knew of the employee's propensity to commit the tortious act or should have known of such propensity." (N.X. v Cabrini [*5]Med. Ctr., 280 AD2d 34, 42 [1st Dept 2001].) Here, the complaint fails to allege facts from which to infer that defendants McCann and John Does had a propensity for violence, or that TWU was aware of such propensity. (See Piniewski v Panepinto, 267 AD2d 1087 [4th Dept 1999].)

Nor may dismissal of these causes of action be avoided based on plaintiff's claimed need for discovery where, as here, plaintiff fails to offer any "evidentiary basis" to show that discovery may lead to relevant evidence. (See Harris v. Alcan Aluminum Corp., 91 AD2d 830, 831 [4th Dept 1982], affd for reasons stated below 58 NY2d 1036 [1983]; Boston Safe Deposit & Trust Co. v. Hoffman, 177 AD2d 368 [1st Dept 1991].)

Finally, plaintiff's punitive damages claim must also be dismissed, as the underlying claims have been dismissed, and there is no independent cause of action for punitive damages. (See Rocanova v. Equitable Life Assur. Socy., 83 NY2d 603 [1994].)

It is accordingly hereby ORDERED that defendant TWU's motion to dismiss is granted to the extent that plaintiff's complaint against it is dismissed in its entirety; and it is further

ORDERED that the action as against the remaining defendants is severed and shall continue; and it is further

ORDERED that the remaining parties shall appear for a status conference in Part 57 of this Court on July 17, 2003 at 9:30 a.m.

This constitutes the decision and order of the court.

Dated:New York, New York

June 20, 2003

___________________________

MARCY FRIEDMAN, J.S.C.

Footnotes

Footnote 1:Authorization in this context means prior authority for an agent's act, and ratification "is a form of subsequent authorization by which the principal, with knowledge of the material facts, accepts responsibility for the agent's act whether it was originally approved or not." (A. Terzi Prods., Inc. v Theatrical Protective Union, 2 F Supp 2d 485, 491 n 3 [SD NY 1998].)

Footnote 2:Even assuming arguendo that Browne imposes a lesser standard for imposition of liability upon the union, the deposition testimony submitted by plaintiff is devoid of any evidence that TWU or its officers was aware that violence or threats of violence had become an everyday occurrence, and either openly encouraged or deliberately failed to check it. (203 AD2d at 14.)

Footnote 3:While this court previously denied a motion to dismiss by defendant Local 100, the court's order is not law of the case. Moreover, the order was made without the benefit of the more extensive discussion of applicable legal authority provided by TWU.