Opinion
Index 151950/2021
02-01-2022
EDWIN AGRAMONTE, OMER OZCAN, RAPHAEL SEQUIERA Petitioner, v. LOCAL 461, DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, BY ITS PRESIDENT, JASON VELZAQUEZ, Respondent. Motion Seq. Nos. 002, 003
UNPUBLISHED OPINION
MOTION DATE 06/25/2021
PRESENT: HON. WILLIAM PERRY JUSTICE
DECISION + ORDER ON MOTION
WILLIAM PERRY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 56, 58 were read on this motion to/for INJUNCTION/RESTRAINING ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 003) 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90 were read on this motion to/for _DISMISS.
In this Article 78 proceeding, petitioners Edwin Agramonte (Agramonte), Omer Ozcan (Ozcan) and Raphael Sequiera (Sequiera) are seeking injunctive relief related to conduct that took place in the course of the election of officers held on February 26, 2021 for respondent Local 461, District Council 37, American Federation of State County and Municipal Employees (Local 461), by its President, Jason Velzaquez. Among other requested relief, in the Amended Petition and motion sequence 002, petitioners are seeking to void the election results. In motion sequence 003, Respondent moves, pursuant to CPLR 3211 (a) (2) and (7), for an order dismissing the amended petition. The motions are consolidated for disposition. For the reasons set forth below, respondent's motion is granted and motion sequence 002 is denied and the amended petition dismissed in its entirety.
Respondent notes that Jason Velasquez has been incorrectly identified in the caption as Velzaquez.
BACKGROUND AND FACTUAL ALLEGATIONS
Petitioners are members of Local 461, a local union affiliated with the American Federation of State, County and Municipal Employees (AFSCME) that is a "constituent of AFSCME's administrative subdivision, District Council 37 (hereinafter 'DC 37')." NYSCEF Doc. No. 57, Amended Petition, ¶ 4. Local 461 represents approximately 1, 200 New York City Department of Parks and Recreation employees in the Lifeguard title. The majority of Local 461 's members are seasonal employees who work at the beaches and pools that are open from Memorial Day until Labor Day. Only 30 to 50 members are employed year-round. Agramonte is a year-round lifeguard, while Sequiera and Ozcan are seasonal lifeguards.
Relevant Procedural History Leading up to Local 461's February 26, 2021 Election
On February 11, 2021, Velasquez sent out "Notice of a Nominations Meeting." Petitioners claim that the seasonal members did not receive this notice. The meeting was scheduled online for February 25, 2021, with a video conferencing platform that could only accommodate 200 people. Velasquez also mailed out a Notice of an Election meeting, which notified those members that an election was scheduled to take place in person, on February 26, 2021.
Agramonte attended the video conference on February 25th and nominated himself for president. He also nominated seasonal employees, including Sequiera and Ozcan, for positions as board members and other officers. At the nomination meeting, Joshua Frias (Frias), the election committee chair, issued a determination that only Agramonte, as a year-round employee, was eligible to for run for office. Sequira and Ozcan were advised that, as seasonal employees, they do not meet the qualifications to run for office. Frias stated the following, in relevant part:
"The above-referenced Lifeguards are seasonal employees. Union records show that the typical Lifeguard Season runs from the end of May until on or about the first week of September. The 2020 Lifeguard Season began on or around July 2020, and concluded on or about Labor Day 2020. The above-referenced members, except Edwin Agramonte, served as seasonal Lifeguards during the 2020 season. Many of these members have requested dues credit under Article III, Section 9 of the AFSCME International Constitution. However, even if these members are entitled to the maximum amount of allowable dues credit of six months under the International Constitution, all the aforementioned members-except Edwin Agramonte-would still be unable to meet the qualifications to run for office under Article VI, Section 5 of the Local 461 Constitution, and are therefore ineligible."NYSCEF Doc. No. 73 at 2.
After receiving this notification, in motion sequence 001, petitioners moved by order to show cause for a temporary restraining order enjoining respondent from conducting the election. After reviewing the papers and hearing oral argument, on February 26, 2021, Judge Dakota Ramseur denied the order show cause. In the written decision and order dated March 2, 2021, the court found that petitioners failed to demonstrate irreparable harm in the absence of an injunction. Specifically, "since the LMRDA (Labor Management Reporting and Disclosure Act) provides for post-election remedies, including overturning an improperly held election, petitioners fail to demonstrate irreparable harm." NYSCEF Doc. No. 65 at 3.
Local 461 subsequently conducted its election for officers on February 26, 2021. The Election Committee received 20 ballots. Agramonte was not elected President.
Instant Action
Petitioners now seek to void the February 26, 2021 election results. NYSCEF Doc. No. 58. As with the order to show cause for the temporary restraining order, petitioners argue that the election violated several provisions of AFSCME and Local 461 's constitutions. NYSCEF Doc. No. 59. To start, petitioners claim that, although the Local 461 Constitution sets forth that elections should take place in the month of February, prior elections have not taken place during that month. For instance, the election prior to the one held in February 2021 took place in June 2018. "The terms of office of these officers would, by past practice, end sometimes in June 2021." Amended petition, ¶ 13. In addition, the notices, which were only sent to the year-round members, did not "indicate that an Election Committee has been appointed, as required by the AFSCME Election Code at Section 2b, and the Local Constitution at Article VI Section 6." Id., ¶ 14. The notices were also not sent out 15 days in advance, as required.
All lifeguard personnel employed by the NYC Department of Parks, except supervisors, are eligible for membership in the union. The constitution explains that membership dues are to be paid monthly and that a member who fails to pay monthly dues is considered delinquent, and loses their good standing status. AFSCME's Constitution has similar provisions.
While these provisions are in the Constitutions, there is also a dues waiver provision in the AFSCME Constitution, which allows members to retain membership status under certain circumstances without paying dues. The provision states the following:
"When a member is unemployed, on leave for military service, or on unpaid leave for more than twenty days in any calendar month, such member shall, upon request, be entitled to credit for membership dues for the period of unemployment, military service, or unpaid leave but not to exceed six months within any twelve-month period."Id., ¶ 10.
A member must be in good standing on the date of the election to be eligible to vote and must be in good standing for one year immediately preceding the date of the election to be able to run for office. The City of New York is responsible for deducting dues from the members' wages for the months that they are working. In brief, the 1, 170 seasonal employees work May through September. They stop earning wages in October 2020. However, they get vacation payout checks in November and December, from which dues are taken. Accordingly, given the above, as seasonal employees do not pay dues the months that they are not working, they lose their good standing status and are unable to vote or run for office. However, petitioners argue that "the language of [waiver provision in] the AFSCME Constitution clearly gives laid off members membership rights without paying dues for six months." Id., ¶ 20.
Petitioners allege that, as seasonal employees, they have "never been allowed to vote in elections, vote on collective bargaining agreements, or run for office." Amended petition, ¶ 8. Ozcan and Sequiera requested to retain their membership during the off-season months, but had "no way to formally express that desire to Local 461 's leadership, which has no office." Id., ¶ 15. Other seasonal members also allegedly attempted to enforce their six-month layoff rights immediately prior to the election, but did not receive a response. Petitioners allege the following, in relevant part:
"In no other local of AFSCME do seasonal employees, who are on layoff, have to formally request that they maintain their membership during the six months set forth in Article III, Section 9 of the AFSCME Constitution. More importantly, to allow 30 members to be the only voting members of a union whose membership swells to over 1200 people every summer, is fundamentally undemocratic."Id.
After the election, on March 3, 2021, Agramonte filed an internal appeal with Local 461 's Election Committee. In relevant part, Agramonte alleged that "[a]ll seasonal members, including a group I nominated for office, should have been allowed to run for office and vote in the election." NYSCEF Doc. No. 74 at 1. Agramonte explained that "[a]bout a dozen seasonals in Local 461 did ask for a waiver. They were not allowed to vote in the February 26, 2021 election." Id. He also noted that "[t]he election was moved to February, not because there was a concern for the Local Constitution, but because in May and June seasonals would be eligible to vote." Id. After holding a hearing, the election committee denied Agramonte's appeal on April 1, 2021.
Agramonte subsequently filed an appeal on April 11, 2021 with AFSCME's Judicial Panel, where he similarly challenged the election results. In pertinent part, Agramonte alleged that the union unfairly refused to allow seasonal members to vote in the election or run for office. These members should have been granted waiver requests for the months that they were not working and did not pay dues. He further alleged that the election should have been conducted in May of June. A hearing was held on May 6, 2021. Agramonte was represented by counsel, testified, and had the other petitioners testify.
On May 14, 2021, the Judicial Panel issued a determination dismissing Agramonte's election protest in its entirety and confirming the results of the Local 461 's February 26, 2021 election of officers and delegates. In pertinent part, the Judicial Panel rejected Agramonte's assertions that the seasonal lifeguards should have been eligible to vote or run in the election because they should be able to secure a waiver to be able to maintain their membership without paying dues for six months. The Panel stated that, to be eligible to run for office a member must be in good standing for one year immediately preceding the election. However, "[i]t is not possible for a seasonal member who works three full months and two partial months each year to maintain the status of a year in good standing even if they were granted the 6-month waiver as provided for under Article III, Section 9." NYSCEF Doc. No. 76 at 8. With respect to notification of a possible waiver, the Judicial Panel found that "it is not incumbent upon the Council, Local, or Election Committee to notify the members of their right to request the waiver, the Constitution is available on the web for members so that they may know their rights." Id. at 9.
With respect to the rights of the seasonal members, the Panel summarized:
"The Constitution is clear, members are required to pay dues; it is through membership dues that rights are conferred. The seasonal lifeguards pay dues and are considered 'in good standing' during the months they pay dues. Through testimony it was established that the seasonal lifeguards last paid dues in November/December and would not resume paying dues until May/June. Brother Agramonte himself recognizes this in item 4 of his protest when he wrote 'in May and June the seasonal lifeguards would resume paying dues and would be eligible to vote.' In this instance, the seasonal lifeguards were not paying dues at the time of the election, nor did they meet the requirement of maintaining 'in good standing status for one year,' therefore they were not eligible to run for office nor vote during the February election."Id. at 8-9.
The Panel also rejected Agramonte's claim that the election should have taken place in May or June. It stated that, pursuant to Local 461 's Constitution, all regular elections are supposed to take place in February. It continued that "[p]ast practice cannot replace or supersede what is set forth in the Local Constitution." Id. at 10.
The record also indicates that, in January 2020, Sequiera and Ozcan previously filed charges against Local 461 's former president Franklin Paige (Paige), with AFSCME's Judicial Panel. Among other things, petitioners had alleged that Paige failed to notify them of membership meetings and also that he failed to hold these constitutionally-mandated meetings. Pursuant to a decision dated October 19, 2020, the Judicial Panel found that Paige was "guilty of violating Article X Section 2(A) for failing to hold the constitutionally mandated membership meetings, as required by the Local 461 Constitution Article V, Section 1, and for depriving the seasonal lifeguards the full rights of union membership, as required by Article IV, Sections 1 and 4 of the Local 461 constitution." NYSCEF Doc. No. 77 at 10. Among other penalties, Paige was removed as President.
Subsequent to Agramonte's internal appeal, petitioners filed this amended petition seeking to void the results of the February 26, 2021 election. Petitioners are seeking to have the court order that all lifeguards who paid membership dues between June 1, 2020 and August 31, 2020, be eligible to vote and run for office in that election. In the first cause of action, petitioners allege that, by their actions, respondent has breached the Local 461 Constitution. The second cause of action states that respondent has "applied the terms of the Local 461 Constitution in a manner which is unreasonable and undemocratic, a violation of the common law of elections in New York." Amended petition, ¶ 26.
Respondent's Motion to Dismiss and Petitioners' Opposition
According to respondent, judicial interference into the union's affairs is unwarranted, as there was no fraud or substantial wrongdoing with the election. Local 461 's Constitution provides that a member must be in good standing in order to vote in an election. To be in good standing, a member must pay monthly dues on time. "Local 461's Constitution does not contain a carveout relieving members engaged in seasonal employment from the obligation to pay dues." NYSCEF Doc. No. 79, respondent's memorandum of law in support at 2. Respondent argues that Local 461 "has done nothing but apply the plain language of its Constitution to conduct its election." Id. at 8.
Respondent further notes that Local 461's Election Committee and AFSCME's Judicial Panel dismissed these same election related complaints. It alleges that seasonal employees are not exempt from paying dues during the periods when they are not employed. Seasonal employees "can and must pay their dues by hand during such periods to avoid being deemed delinquent." Id. at 19. Further, "[petitioners do not allege anything that would have prevented them during the time they were in layoff status from continuing to pay dues by hand." Id. It also maintains that the Constitution is available online to advise members of their right to request a dues waiver. As the Judicial Panel previously concluded, Local 461 is not "under some affirmative obligation to advise the seasonal Lifeguards of their ability to request a dues waiver . ..." Id. Furthermore, even if the waiver was timely requested and granted, the seasonal members still would not have been in good standing for one year immediately prior to the election. "This is because six months of credited dues, plus dues for the period July - September 2020 when the seasonal Lifeguards' dues were deducted from payroll, equals ten months (not twelve) of dues." Id. at 21.
Among other things, respondent also argues that, in an action against an unincorporated association like Local 461, petitioners must allege that each individual local 461 member "authorized or ratified" the conduct. This standard, set forth in Martin v Curran (303 NY276 [1951]), is applicable to breaches of agreements in addition to tortious wrongs.
In opposition, petitioners claim that the "election was run in an undemocratic manner, in violation the Local 461 Constitution and the New York State Common Law of Union Democracy." NYSCEF Doc. No. 85, Petitioners' memorandum of law in further support at 12. Petitioners claim that the AFSCME Constitution gives seasonal members membership rights without paying dues for six months and that respondent unreasonably applied the constitution to its election procedures. According to petitioners, "[f]here is no question here, that the hastily organized election of Local 461, and the failure to involve 1, 170 of the 1, 200 members who pay dues to the Local and work under the Local's contract with the City violated and is wholly contrary to their letter and the spirit of the Local 461 Constitution, and is about as 'unreasonable' as one can get." Id. at 15.
According to petitioners, as "[t]he principles of Martin v Curran apply to common law torts," it is inapplicable to cases alleging a violation of the union constitution. Id. at 21.
LMRDA
According to respondents, any post-election challenges are federal claims subject to Title IV of the Labor Management Reporting and Disclosure Act (LMRDA), 29 USC §§ 481 et seq. "Because the February 26, 2021 Local 461 election for the office of President is subject to the LMRDA, the proper-and only-avenue for Petitioner Agramonte to purse his post-election challenges is through the administrative process laid out in Title IV of the LMRDA." NYSCEF Doc. No. 79, Respondents' memorandum of law in support at 11. They explain that a member may enforce his Title IV rights by first filing an internal appeal with the union. If the member's appeal is not satisfactory, the member may file a complaint with the U.S. Department of Labor (DOL), who shall investigate the complaint.
As pertinent here, petitioners assert that they did file a complaint with the DOL, however the DOL rejected the complaint. The record indicates that Agramonte submitted a claim to the Office of Labor-Management Standards (OLMS) of the DOL seeking "to challenge [the] AFSCME Local 461 officer election conducted in 2021 ...." NYSCEF Doc. No. 84 at 1. Pursuant to an email dated July 13, 2021, the DOL advised Agramonte that, "[b]ecause AFSCME Local 461 represents public sector, non-federal employee [sic], it is not covered by either LMRDA or the CSRA .... "[T]he Department of Labor has no jurisdiction to accept and investigate your complaint." Id. The DOL advised petitioner, in relevant part:
"The only way OLMS would have jurisdiction to investigate your complaint would be if you sought to challenge the election of Local 461's president as a delegate of AFSCME District Council 37 (DC 37) that is scheduled to be January 2022. The Department would have jurisdiction over your complaint (presumed that it was timely filed according to the LMRDA) as it relates to the local's president as a delegate of DC 37 only. If the Department investigated the complaint and found violations of the LMRDA in the DC 37 officer election, the remedy would only relate to that election. The Department does not have jurisdiction over Local 461 president position and therefore, any remedy effectuated by the Department would not involve the removal of the local's president."Id. at 1-2.
DISCUSSION
Dismissal
"[0]n a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is afforded a liberal construction, facts as alleged in the complaint are accepted as true, plaintiffs are afforded the benefit of every possible favorable inference, and the motion court must only determine whether the facts as alleged fit within any cognizable legal theory." D.K. Prop., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 168 A.D.3d 505, 506 (1st Dept 2019). However, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration." Silverman v Nicholson, 110 A.D.3d 1054, 1055 (2d Dept 2013) (internal quotation marks and citation omitted). CPLR § 3211 (a) (2) authorizes the Court to dismiss a cause of action where "the court has no jurisdiction of the subject matter of the cause of action."
As set forth below, the amended petition must be dismissed against respondent as a matter of law, as petitioners failed to sufficiently plead that the individual members of Local 461 authorized or ratified the purportedly unlawful conduct. In Martin v Curran (303 NY 276 [1951]), the Court of Appeals addressed the issue of maintaining an action against a union, which is an unincorporated association. Ultimately, the Martin Court concluded that, because a labor union is a voluntary unincorporated association, the plaintiff was required to plead and prove that each member of the union authorized or ratified the alleged wrongful conduct (hereinafter, the Martin Rule). After discussing the application of General Associations Law § 13, the Court held that "suits against association officers, whether for breaches of agreements or for tortious wrongs, [are limited] to cases where the individual liability of every single member can be alleged and proven." Id. at 282.
While not disputing the rule of law set forth in Martin v Curran, petitioners claim that it is not applicable herein. However, Martin v Curran is controlling and applicable to dismissal of breach of contract claims against unincorporated associations like Local 461. For example, the Court of Appeals recently acknowledged that "[t]he Martin rule has been criticized as essentially granting unions complete immunity from suit in state court." Palladino v CNY Centro, Inc., 23 N.Y.3d 140, 148 (2014). Nevertheless, the Court noted that "New York, meanwhile, is said to be in the company of a small minority of states that cling to the common-law requirement that the complaint allege that all of the individual members of the union authorized or ratified the conduct at issue." Id. at 148-149 (internal quotation marks and citation omitted). The Court in Palladino also recognized a narrow exception to Martin, stating that "Martin is inapplicable to a suit by a union member against a union arising from wrongful expulsion." Id. at 148. Another Court also recently cited Martin v Curran, and reiterated that "[a]ctions against unincorporated associations, whether for breaches of agreements or for tortious wrongs, are limited to cases where the individual liability of every single member can be alleged and proven." Bidnick v Grand Lodge of Free & Accepted Masons of the State of N.Y., 159 A.D.3d 787, 789 (2d Dept 2018).
Subsequent to Martin, courts have routinely dismissed claims against unions and their representatives when petitioners failed to sufficiently plead that the members of the union had authorized or ratified the conduct. See e.g. Cablevision Sys. Corp. v Communications Workers of Am. Dist. 1, 131 A.D.3d 1087, 1087-1088 (2d Dept 2015) (internal citations omitted) (The Supreme Court properly applied the Martin rule in dismissing the complaint against the [union] defendants .... Contrary to the plaintiffs' contention, the Martin rule applies to claims for injunctive relief); see also Morton v Mulgrew, 144 A.D.3d 447, 448 (1st Dept 2015) (internal quotation marks and citations omitted) (Court rejected plaintiffs' argument that Martin v Curran was inapplicable when assessing the claim against the union, stating that plaintiffs were, "[c]ognizant 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").
It is well settled that "[a] union's constitution and by-laws constitute a contract between the union and its members and define not only their relationship but also the privileges secured and the duties assumed by those who become members, unless contrary to public policy." Matter of LaSonde v Seabrook, 89 A.D.3d 312, 137 (1st Dept 2011) (internal quotation marks and citation omitted). Accordingly, as petitioners failed to plead that each union member authorized or ratified the election procedures that were purportedly breaches of the union constitution, the cause of action alleging breach of contract must be dismissed. See e.g. Bidnick v Grand Lodge of Free & Accepted Masons of the State of N. Y., 159 A.D.3d at 789 (Court held that cause of action alleging defamation must be dismissed as "[h]ere, the plaintiff made no factual allegations in the complaint or in opposition to the motion to dismiss to indicate that all members of the Grand Lodge did in fact ratify the allegedly defamatory statements").
Obligations Under the Union Constitution
In the remaining cause of action, petitioners claim that the election was run in an undemocratic manner and that it violated the New York State common law of union democracy. It appears that petitioners' claims stem from an alleged breach of the union constitution, which, as discussed, is a claim precluded under the Martin rule. In any event, assuming arguendo, that the Martin rule would not preclude any additional assessment, the court finds that respondent applied the constitution in a reasonable manner, as the terms were applied as they were written.
"The right of union members to secure the union's compliance with its constitution and bylaws is thus enforceable in the courts of this state through an article 78 proceeding." Matter of LaSonde v Seabrook, 89 A.D.3d at 137. When assessing the union's actions, the court "must determine whether said actions are authorized under the union's constitution or bylaws." Id. (internal citation omitted). "[T]he court must... (1) independently review[] the constitution or bylaws in accordance with the general rules of construction appertaining to contracts and (2) determine[] whether the union official's interpretation is a reasonable interpretation of the constitution or bylaws." Id. at 137-138 (internal quotation marks and citation omitted).
Upon review of petitioners' claims, the court finds that the contested actions were authorized under the union's constitution and that the union applied the specific terms of the contract. For instance, the Local 461 Constitution states that elections are to be held in the month of February. The record indicates that the most current election was held during that month. The Constitution confers the rights of membership to paying members. It further provides that to be eligible to vote in the local election, the member must be in good standing, i.e. pay monthly dues, on the date of the election. Union dues are automatically taken out of wages. Here, Ozcan and Sequiera, as seasonal members, did not work in the month of February. As such, they did not pay dues in the month of February so they were not eligible to vote.
To run for office, a member must be in good standing for one year immediately preceding the election. Ozcan and Sequiera, as seasonal members, did not pay dues for several months of the year, so they lost their good standing status and were not eligible. Seasonal members are not exempt from paying dues if they wish to remain in good standing all year round. Respondents have noted that seasonal members can pay their monthly dues by hand even if they are not working those months, however, none of them did so. As only members in good standing are advised of upcoming nominations and elections, these petitioners did not receive the notices.
The court recognizes the existence of the dues waiver provision in the AFSCME Constitution which allows a member, upon request, to "be entitled to credit for membership dues for the period of unemployment, military service, or unpaid leave but not to exceed six months within any twelve-month period." Amended petition, ¶ 10. At the outset, the AFSCME Constitution is made available online for all members to view. There is no constitutional requirement for the union to proactively advise members of the ability to request a waiver.
As set forth above, as noted by the Judicial Panel, even if petitioners paid dues only during the months they worked and then proactively requested a waiver, "[i]t is not possible for a seasonal member who works three full months and two partial months each year to maintain the status of a year in good standing even if they were granted the 6-month waiver ...." Petitioners claim that, "the seasonals here work from May until September, and get vacation payout checks in November and December of each year, from which dues are deducted. This pattern allows them to keep membership in good standing year-round." NYSCEF Doc. No. 85, memorandum of law in further support at 15. According petitioners every possible favorable inference, even if they had requested and been granted a waiver, Sequiera and Ozcan would not meet the criteria for having good standing for one year immediately preceding the election because they did not pay dues by hand for the month of October 2020, when no wages were issued.
Petitioners argue that respondent could have taken the approach "empowering their seasonal members, but it chose not to." Id. They claim that failing to include 1, 170 out of 1, 200 members is "contrary to . .. the spirit of the Local 461 Constitution." Id. Although petitioners believe that respondent should have acted differently with respect to the seasonal members, there is no indication that respondent's actions were unauthorized. Respondent applied the constitution in accordance with general contract rules, and, as the express language of the contract was followed, the interpretation was reasonable.
Additional Issues
The record indicates that, both before and after the election took place, petitioners filed internal appeals with the Local 461 's Election Committee and AFSCME Judicial Panel. Petitioners had contested, in relevant part, the eligibility of seasonal members to vote and run in the February 26, 2021 election and the timing of that election. Accordingly, the court will not consider any new allegations with respect to the election, such as the timing of the mailing of the notices. See e.g. Matter of Daniels v New York State Dept. of Disabled Am. Veterans, 40 A.D.3d 219, 220 (1st Dept 2007) (internal quotation marks and citations omitted). ("It is well settled that when a nongovernmental entity ... provides timely and adequate relief, an aggrieved member must first exhaust that organization's remedies before seeking redress from a court").
CONCLUSION
Accordingly, it is hereby
ORDERED and ADJUDGED that respondent Local 461, District Council 37, American Federation of State County and Municipal Employees, by its President, Jason Velzaquez's motion sequence 003, to dismiss the amended petition, is granted, and motion sequence 002 and the amended petition are denied and the proceeding is dismissed.