Opinion
Index No. 151561/2022 Motion Seq. Nos. 001 002 003
10-17-2023
CAF DOWLAH, Plaintiff, v. PROFESSIONAL STAFF CONGRESS (PSC-CUNY), HANAN KOLKO, and PETER ZWIEBACH, Defendants.
Unpublished Opinion
MOTION DATE 10/16/2023
DECISION+ ORDER ON MOTION
HON. ERIC SCHUMACHER, Justice
NYSCEF doc nos. 14-16,28, and 30-31 were read in seq. no. 001 to dismiss.
NYSCEF doc nos. 17-27 and 29 were read in seq. no. 002 to dismiss.
NYSCEF doc nos. 34 and 36 were read in seq. no. 003 to expedite.
Motion seq. no. 001 by defendant Hanan Kolko (hereinafter Kolko) pursuant to CPLR 3211 for dismissal of plaintiff s amended complaint is granted.
Motion seq. no. 002 by defendants Professional Staff Congress (PSC-CUNY) (hereinafter PSC) and Peter Zwiebach (hereinafter Zwiebach) pursuant to CPLR 3211 for dismissal of plaintiffs amended complaint is also granted.
Motion seq. no. 003 by plaintiff to expedite is resolved as academic.
BACKGROUND
Plaintiff commenced this action on February 21, 2022, alleging legal malpractice against defendants as to their representation of plaintiff in arbitration proceedings that ultimately resulted in the termination of plaintiffs employment.
The amended complaint (hereinafter complaint) alleges that PSC is the collective bargaining representative of faculty at the City University of New York (hereinafter CUNY) and Zwiebach is PSC's Legal Director. CUNY employed plaintiff as an associate professor at Queensborough Community College (hereinafter QCC). The complaint further alleges that, in 2014, QCC denied plaintiffs application for promotion to a full professorship. The complaint further alleges that PSC filed a grievance over the 2014 denial, and, in June 2016, negotiated a settlement on plaintiffs behalf that provided for the referral of his application to a select committee of three CUNY professors.
The complaint further alleges the select committee ultimately denied plaintiff s application for full professorship, and that, in May 2018, plaintiff sent an email to the select committee members stating that "bringing down a fellow colleague so unscrupulously and so unjustly may bring great joy to your miserable lives," but that it made plaintiff "feel like a piece of dirt" (NYSCEF doc. no. 5 at 3). Plaintiff further stated: "I damn you all to hell-may your bodies and souls bum in eternal fires" (id.). The email resulted in QCC bringing disciplinary charges against plaintiff for conduct unbecoming of a member of the staff and proposing terminating his employment due to professional misconduct (see NYSCEF doc. no. 6, exhibit B).
PSC then filed for arbitration under its collective bargaining agreement (hereinafter CBA) challenging the proposed termination. Following an evidentiary hearing (hereinafter the hearing) in which defendant Kolko represented PSC, the arbitrator issued an award in March 2019 (hereinafter the arbitration award) denying the grievance of plaintiff and finding that CUNY had just cause to terminate plaintiff for the "unprofessional, demeaning, and violent language" of the email (NYSCEF doc. no. 5 at 10, 11).
Plaintiff then moved to vacate the arbitration award pursuant to CPLR 7511 (NYSCEF doc. no. 22). The motion court denied the petition (see Dowlah v The City Univ, of New York, 2019 NY Slip Op 32694[U] [Sup Ct, NY County 2019], NYSCEF doc. no. 23) and the Appellate Division, First Department affirmed, concluding that the arbitrator's findings were supported by the record and were not arbitrary, capricious, or irrational (see Matter of Dowlah v City Univ, of New York, 189 A.D.3d 533, 534 [1st Dept 2020], NYSCEF doc. no. 24), holding that plaintiffs assertion that the arbitrator was biased against him was not supported by any evidence in the record. The court rejected plaintiffs challenge to the penalty imposed, holding that, as plaintiff had "received numerous prior warnings about disrespectful and intemperate writings to staff and coworkersf,]... [t]he arbitrator reasonably concluded that a more lenient penalty was unlikely to change [his] unprofessional conduct" (id. at 535).
The first cause of action for legal malpractice alleges that Kolko committed legal malpractice at the arbitration by being unprepared, by failing to cross-examine CUNY's witnesses, to object to CUNY's witnesses testifying by telephone, to object to the admission of stale evidence, to emphasize plaintiffs accomplished academic background, and by advising that plaintiff arbitrate instead of taking an offered settlement.
The second cause of action for negligence alleges that Zwiebach was negligent and breached his contractual and fiduciary duties by failing to consult plaintiff in the selection of the arbitrator and of Kolko. Plaintiff alleges that Zwiebach knew or should have known that the arbitrator was biased towards employers.
The third cause of action for vicarious liability alleges that PSC should be held vicariously liable for the actions of Kolko and Zwiebach.
Kolko now moves in seq. no. 001, and PSC and Zwiebach move in seq. no. 002, pursuant to CPLR 3211 to dismiss the complaint as asserted against them. Defendants adopt and incorporate each other's arguments and grounds for dismissal.
DISCUSSION
Dismissal pursuant to CPLR 3211(a)(7) requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and is properly pleaded. A cause of action does not have to be skillfully prepared, but it does have to present facts so that it can be identified and establish a potentially meritorious claim (see Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). "[A] court must give the complaint a liberal construction, accept the allegations as true and provide plaintiffs with the benefit of every favorable inference... [and] [w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (Cortlandt St. Recovery Corp, v Bonderman, 31 N.Y.3d 30, 38 [2018] [internal quotation marks and citations omitted]). When evidentiary material is provided in support of a motion pursuant to CPLR 3211(a)(7), the court must determine whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).
To sustain a cause of action for legal malpractice, a plaintiff must establish that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession ... [which] caused plaintiff to sustain actual and ascertainable damages" (Nomura Asset Capital Corp, v Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 [2015] [internal quotations and citations omitted]), "and that the plaintiff would have succeeded on the merits of the underlying action 'but for' the attorney's negligence" (AmBase Corp, v Davis Polk &Wardwell, 8 N.Y.3d 428, 434 [2007] [internal quotations and citations omitted]).
"A plaintiffs burden of proof in a legal malpractice action is a heavy one. The plaintiff must prove first the hypothetical outcome of the underlying litigation and then, the attorney's liability for malpractice in connection with that litigation" (Lindenman v Kreitzer, 7 A.D.3d 30, 34 [1st Dept 2004]). An attorney's error in judgment does not constitute legal malpractice (see Hand v Silberman, 15 A.D.3d 167, 167 [1st Dept 2005]). In addition, "selection of one among several reasonable courses of action does not constitute malpractice" (Bernstein v Oppenheim & Co., P.C., 160 A.D.2d 428, 430 [1st Dept 1990] quoting Rosner v Paley, 65 N.Y.2d 736, 738 [1985]).
Kolkos motion in seq. no. 001
Kolko moves pursuant to CPLR 3211(a)(7) to dismiss plaintiffs complaint insofar as asserted against him based on, among other things, that Kolko is immune from legal malpractice actions under federal and/or state statutes governing the collective bargaining process, including Section 301 of the Labor Management Relations Act, 29 (J.S.C. § 185, which prohibits suit against individual union members under certain circumstances and reflects a congressional intent to shield those individuals from liability, and Civil Service Law §209-a(2)(c), which imposes on unions a duty of fair representation to public employees and gives rise to an implied cause of action against a union, but not against an individual attorney for breach of that duty.
A cause of action for malpractice cannot be maintained as against an individual attorney hired by plaintiffs union to handle a disciplinary proceeding under the union's CBA (see Cherry v Koehler &Isaacs LLP, 96 A.D.3d 507 [1st Dept 2012]). Under such circumstances plaintiff is limited to bringing an action against the union for breach of the duty of fair representation (see Palladino v CNY Centro, Inc., 23 N.Y.3d 140, 152 [2014]) because, in that instance, plaintiffs malpractice claims are preempted by federal labor law, as those claims arise out of defendant attorney's representation of the union during plaintiffs disciplinary proceedings under the union's CBA (see Frontier Pilots Litig. Steering Comm., Inc, v Cohen, Weiss &Simon, 227 A.D.2d 130,131 [1st Dept 1996]; see also Klingsberg v Council of Sch. Supervisors &Adm'rs-Local 1, 181 A.D.3d 949, 950-951 [2d Dept 2020]).
Here, plaintiff asserts that he is bringing an action for malpractice and not for breach of the duty of fair representation, stating, "[t]his case.. .is not filed as a claim in fair representation... [t]his is an action arising in legal malpractice" (NYSCEF doc. no. 26 at 26). Yet plaintiff does not dispute that Kolko was engaged as the attorney for PSC to handle the arbitration hearing under the CBA on behalf of plaintiff. As such, Kolko cannot be subjected to a malpractice cause of action by a union member.
The court notes that even if such a malpractice cause of action were permissible, the underlying assertions are conclusory, speculative, and flatly contradicted by plaintiff s own exhibits and fail to suffice for a malpractice action (see Commerce Bank v Bank of NY Mellon, 141 A.D.3d 413,416 [1st Dept 2016]; Heritage Partners, LLC v Stroock &Stroock &Lavan LLP, 133 A.D.3d 428 [1st Dept 2015]).
Plaintiffs assertion that Kolko was unprepared and disinterested in his case is belied by plaintiffs own submission, which annexes several emails that demonstrate Kolko's preparedness and efforts to communicate with plaintiff about his case (NYSCEF doc. no. 12, emails no. 1-10]). Moreover, contrary to plaintiffs contention that Kolko hurt his case by failing to emphasize plaintiffs professional background, the arbitrator upheld plaintiff s termination despite Kolko having presented convincing evidence of plaintiffs impressive professional background at the hearing. Indeed, the award notes that plaintiffs myriad accomplishments were insufficient to overcome his history of similar disciplinary issues and his apparent lack of remorse (see NYSCEF doc. no. 5 at 12, 13).
Plaintiffs factual allegations also fail to establish that Kolko's actions were a proximate cause of any loss to plaintiff and highlight the speculative nature of plaintiff s claim (see Sherwood Group, Inc, v Dombush, Mensch, Mandelstam, &Silverman, 191 A.D.2d 292, 294 [1st Dept 1993]), as plaintiffs complaint offers no factual allegations as to how or why Kolko's actions during the hearing, if executed differently, would have prevented plaintiff from being terminated from his employment (see Ramos v Goldberg, Schudieri &Lindenberg, P.C., 189 A.D.3d 420, 421 [1st Dept 2020]).
Additionally, while plaintiff contends that Kolko advised plaintiff to arbitrate rather than accept a settlement offer from CUNY of a one-semester suspension and an apology, emails attached to plaintiffs complaint indicate that he rejected that settlement offer of his own volition (NYSCEF doc. no. 12, emails no. 7, 10), further illustrating that plaintiffs allegations as to malpractice are unavailing. Where, as here, evidentiary material establishes that alleged material facts are untrue or beyond significant dispute, the complaint must be dismissed (see Wall St. Assoc, v Brodsky, 257 A.D.2d 526, 526-527 [1st Dept 1999]).
PSC and Zwiebach's motion in seq. no. 002
PSC and Zwiebach move pursuant to CPLR 3211(a)(7) to dismiss plaintiffs complaint insofar as asserted against them. Movants argue, among other things, that the complaint does not state a cause of action in that it asserts conclusory statements and legal conclusions that fail to allege facts to support plaintiffs claim. Movants further argue that plaintiff is limited to bringing a cause of action for the breach of the duty of fair representation which should be dismissed as time-barred. The court notes as discussed supra that plaintiff specified this is not an action for the breach of the duty of fair representation.
Nonetheless, CPLR 217(2)(a) provides that plaintiff would have had to have commenced an action for the breach of the duty of fair representation within four months of the date plaintiff knew or should have known that the breach occurred, or within four months of the date plaintiff suffered actual harm, whichever is later (see Alston v Transp. Workers Union, 225 A.D.2d 424, 424 [1st Dept 1996]). Here, plaintiff received written notice of his termination of employment on March 9, 2019, and commenced this action nearly three years later, exceeding the statute of limitations on the claim. To the extent plaintiff seeks to characterize his claim as one for breach of contract, this "is unavailing to avoid the four-month limitations period prescribed in CPLR 217(2)(a)" (Roman v City Emples. Union Local 237, 300 A.D.2d 142, 142 [1st Dept 2002]). Further, as none of the allegations in the complaint demonstrate that movants' conduct was arbitrary, discriminatory, or in bad faith, plaintiffs allegations of negligence are insufficient as to unfair representation (see Henvill v Metro. Transp. Auth., 148 A.D.3d 460, 460 [1st Dept 2017]).
In any event, as a PSC employee, Zwiebach cannot be sued individually, as he cannot be held liable for acts committed in his capacity as a union representative (see Duane Reade, Inc, v Local 338 Retail, Wholesale, Dept. Store Union, 17 A.D.3d 277, 278 [1st Dept 2005]). Further, plaintiffs allegation that Zwiebach was negligent by failing to consult plaintiff in the selection of the arbitrator and of Kolko consists of conclusory statements that express a dissatisfaction with certain strategic choices. Neither an error in judgment by an attorney, nor dissatisfaction with an unsuccessful result in which an attorney exercised appropriate judgment, constitute negligence (see Rubinberg v Walker, 252 A.D.2d 466, 467 [1st Dept 1998]).
Plaintiffs contention that PSC should be held vicariously liable for the actions of Kolko and Zwiebach is unavailing. "[T]here can be no vicarious liability on the part of the employer if the employee himself is not liable" (Karaduman v Newsday, 51 N.Y.2d 531, 546 [1980]). As discussed supra, the court finds that the complaint fails to state a cause of action for malpractice as against Kolko. As plaintiffs dissatisfaction with Zwiebach's strategic choices regarding plaintiff s disciplinary proceeding do not constitute negligence, the court also finds that the complaint fails to state a cause of action for negligence as against Zwiebach. As such, even assuming plaintiff could bring such a claim against PSC, there is no predicate upon which a cause of action for vicarious liability could be maintained.
Any contentions raised but not addressed herein are either academic or deemed to be without merit.
CONCLUSION
Accordingly, it is
ORDERED that the motion in seq. no. 001 by defendant Hanan Kolko pursuant to CPLR 3211(a)(7) to dismiss the complaint with prejudice is granted, and the complaint is dismissed with prejudice as to Hanan Kolko; and it is further
ORDERED that the motion in seq. no. 002 by defendants Professional Staff Congress (PSC-CUNY) and Peter Zwiebach pursuant to CPLR 3211(a)(7) to dismiss the complaint with prejudice is granted, and the complaint is dismissed with prejudice as to Professional Staff Congress (PSC-CUNY) and Peter Zwiebach; and it is further
ORDERED that the motion in seq. no. 003 by plaintiff to expedite is resolved as academic; and it is further
ORDERED that, within five days of entry, defendants shall serve a copy of this order with notice of entry on plaintiff and on the clerk, who is directed to enter judgment accordingly.
The foregoing constitutes the decision and order of the court.