Opinion
950/17 CA 17–00249
03-20-2020
Ann VANYO, Plaintiff–Appellant, v. BUFFALO POLICE BENEVOLENT ASSOCIATION, INC., and City of Buffalo, Defendants–Respondents. (Appeal No. 2.)
JAMES OSTROWSKI, BUFFALO, FOR PLAINTIFF–APPELLANT. CREIGHTON, JOHNSEN & GIROUX, BUFFALO (IAN HAYES OF COUNSEL), FOR DEFENDANT–RESPONDENT BUFFALO POLICE BENEVOLENT ASSOCIATION, INC. TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF COUNSEL), FOR DEFENDANT–RESPONDENT CITY OF BUFFALO.
JAMES OSTROWSKI, BUFFALO, FOR PLAINTIFF–APPELLANT.
CREIGHTON, JOHNSEN & GIROUX, BUFFALO (IAN HAYES OF COUNSEL), FOR DEFENDANT–RESPONDENT BUFFALO POLICE BENEVOLENT ASSOCIATION, INC.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF COUNSEL), FOR DEFENDANT–RESPONDENT CITY OF BUFFALO.
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
MEMORANDUM AND ORDER Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the order and judgment so appealed from is unanimously modified on the law by denying that part of the motion of defendant Buffalo Police Benevolent Association, Inc. seeking dismissal of the first cause of action and reinstating that cause of action and by denying that part of the motion of defendant City of Buffalo seeking dismissal of the second cause of action and reinstating that cause of action and as modified the order and judgment is affirmed without costs.
Memorandum: On remittitur from the Court of Appeals, we are to consider the contention of defendant Buffalo Police Benevolent Association, Inc. (PBA), which was "raised but not addressed on the appeal to [this] Court, that plaintiff's first cause of action should be dismissed pursuant to CPLR 3211(a)(7)" ( Vanyo v. Buffalo Police Benevolent Assn., Inc., 34 N.Y.3d 1104, 1105, 117 N.Y.S.3d 164, 140 N.E.3d 538 [2019] ). Upon giving the amended complaint a liberal construction, accepting the allegations as true, and providing plaintiff with the benefit of every favorable inference (see Nomura Home Equity Loan, Inc., Series 2006–FM2 v. Nomura Credit & Capital, Inc., 30 N.Y.3d 572, 582, 69 N.Y.S.3d 520, 92 N.E.3d 743 [2017] ), we conclude that plaintiff has stated a cause of action for breach of the duty of fair representation (see generally Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v. City of New York, 64 N.Y.2d 188, 196, 485 N.Y.S.2d 227, 474 N.E.2d 587 [1984] ). We therefore modify the order and judgment by denying that part of the motion of the PBA seeking dismissal of the first cause of action and reinstating that cause of action and, in accordance with the Court of Appeals' memorandum, we further modify the order and judgment by denying that part of the motion of defendant City of Buffalo seeking dismissal of the second cause of action and reinstating that cause of action.