Opinion
09-26798.
October 18, 2010.
RALPH A. SOMMA, ESQ., Attorney for Plaintiff, Babylon, New York.
DEVITT SPELLMAN BARRETT, LLP, Attorneys for Defendants Central Islip UFSD Central Islip UFSD Board of Education, Smithtown, New York.
NANCY E. HOFFMAN, ESQ., Attorney for Defendant CSEA, Inc., Albany, New York.
Upon the following papers numbered 1 to 9 read on this motion to RRRR; Notice of Motion/ Order to Show Cause and supporting papers (003) 1-4; Notice of Cross-Motion and supporting papers_; Answering Affidavits and supporting papers 5-6; Replying Affidavits and supporting papers 7-8; Other 9-amended complaint; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (003) by the defendants, Central Islip Union Free School District and Central Islip Union Free School District Board of Education, for an order pursuant to CPLR 2221 to reargue is deemed a motion to resettle and clarify this court's prior order dated April 7, 2010, and is decided as follows:
The defendants seek to clarify this court's prior order dated April 7, 2010. The moving parties set forth that the first two paragraphs concerning the fourth cause of action seem to support a finding that no claims remain against the District defendants, however, the last sentence under the subheading entitled "Fourth Cause of Action for Conversion by Local 1000 and CIUFSD notes that both motions (that of the Central Islip defendants as well as that of Local 1000) are denied.
Accordingly, it is
ORDERED that this court's prior order dated April 7, 2010 is hereby recalled and vacated and the following corrected order is issued in its place and stead; and it is
ORDERED that this motion (001) by the defendant, Civil Service Employees Association, Inc. Local 1000, AFSCME, AFL-CIO, s/h/a Civil Service Employees Union Local 1000, AFSCME AFL-CIO, for an order pursuant to CPLR 3211 (a)(1) and (7) dismissing the second cause of action and so much of the third, fourth fifth, sixth and seventh causes of action as a matter of law, is decided as follows: and it is further
ORDERED that this cross-motion (002) by the defendant, Central Islip Union Free School District and Central Islip Union Free School District Board of Education, pursuant to CPLR 3211 (a)(7) dismissing each of the causes of action in the complaint asserted against them for failure to state a cause of action, is denied as to the fourth cause of action and granted as to the remaining causes of action set forth in the complaint as asserted against Central Islip Union Free School District and the Board of Education and those remaining causes of action are dismissed; and it is further
ORDERED the plaintiff is directed to serve a copy of this Order with Notice of Entry upon the defendants and upon the Clerk of the Calendar Department, Supreme Court, within thirty days of the date of this order, and the Clerk shall schedule this matter for a Preliminary Conference within sixty days of the date of this order before the Hon. Pastoressa, upon notice to all parties if not already scheduled; and it is further
ORDERED that the Civil Service Employees Association, Inc. Local 1000, AFSCME, AFL-CIO; Central Islip Union Free School District and Central Islip Union Free School District Board of Education defendants are directed to serve their answers within forty five days of the date of this order.
The plaintiff, Theresa Hartman, alleges in the complaint that on September 10, 2007, the Central Islip Union Free School District Board of Education (school board) approved her employment as a Provisional School Substitute Coordinator effective September 1, 2007. The plaintiff had submitted to Local 1000 a duly executed application for membership in Local 1000 for the job title of School Substitute Coordinator and her membership was approved in or about September 2007 and she was provided a membership card. Local 1000 membership dues were regularly deducted from the plaintiff's wages paid by the Central Islip Union Free School District (CIUFSD) from her date of employment in September 2007 through the date of her termination on March 2009. The plaintiff has set forth causes of action for breach of contract by CIUFSD; breach of duty of fair representation by Local 1000; unjust enrichment of Local 1000; Conversion by Local 1000 and CIUFSD; equitable estoppel precluding the defendants from denying the plaintiff membership in Local 1000 or the benefits of such membership and the applicable CBA; promissory estoppel based upon the promises made to plaintiff by the defendants; and breach of implied contract by Local 1000.
The complaint further sets forth that by letter dated February 12, 2008, Michael Wolpert, CIUFSD Assistant Superintendent for Personnel advised the plaintiff that on February 11, 2008, the Board of Education granted her permanent status as a School Substitute Coordinator effective March 1, 2008. On October 3, 2008, an eligibility list for the position of School Substitute Coordinator was established and the plaintiff's position on that list was 12th. Pursuant to a January 8, 2009 posting, the plaintiff submitted applications for positions then available with CIUFSD: Teaching Assistant, School Teacher Aide and Contingent Special Education Aide. On February 23, 2009, the plaintiff accepted a position as a Teacher's Aide with CIUFSD commencing February 25, 2009. By letter dated March 3, 2009, Mr. Wolpert explained that the plaintiff's employment as a School Substitute Coordinator was terminated February 23, 2009 as she not "not reachable on the School Substitute Coordinator list and that she had been placed on the Teacher Aide list. On March 9, 2009, Mr. Wolpert advised the plaintiff that her employment as a Teacher's Aide was terminated effective immediately because she was not a member of the union. Upon the plaintiff contacting the Albany offices of CSEA Local 1000, she confirmed that she was a member in good standing of Local 1000 and informed Mr. Wolpert as well as Guy DiCasola, her Local 1000 labor representative. On March 20, 2009, the plaintiff asserts she received a voice mail message from Mr. DiCasola advising that Local 1000 would not file a grievance on her behalf concerning her discharge as she was not in the bargaining unit. He also acknowledged that Local 1000 had accepted her application for membership into Local 1000 in September 2007 and had accepted payment of union dues which were deducted from her wages. The plaintiff asserts that from the time she began her membership in Local 1000 in September 2007, and as a condition of her continued employment with CIUSFD that she was a member of Local 1000 and would be entitled to all the rights and benefits of membership in Local 1000 as well as the applicable CBA. She asserts that neither Local 1000 nor the CIUSFD had made reimbursement of the union dues which were deducted from her wages since her membership in Local 1000 began in September 2007 until her employment with CIUFSD terminated on March 9, 2009. The plaintiff alleges that Local 1000 and CIUFSD conspired and orchestrated the termination of the plaintiff's employment to ensure the appointment of a personal friend of Local 1000 president Chris Marshall to the position of Teacher Aide in the plaintiff's stead which person was a probationary employee with significantly less experience and seniority than plaintiff. The plaintiff claims that she was terminated from CIUFSD without cause and in direct contravention of the collectively bargain agreement existing between CIUFSD and Local 1000, and that the failure and refusal of Local 1000 to initiate and/or process any grievance concerning her discharge was in contravention of the collectively bargained agreement existing between CIUFSD and Local 1000, was arbitrary, capricious, discriminatory and in bad faith and a violation of the duty of fair representation owed to the plaintiff by Local 1000.
In motion (001), the defendant, Civil Service Employees Association, Inc. Local 1000, AFSCME, AFL-CIO, s/h/a Civil Service Employees Union Local 1000, AFSCME AFL-CIO CSEA Local 1000, AFSCME, AFL-CIO (CSEA and union defendants), for an order pursuant to CPLR 3211 (a)(1) and (7) dismissing the second cause of action and so much of the third, fourth fifth, sixth and seventh causes of action as a matter of law. In support of the application, CSEA and the union defendants have submitted an attorney's affirmation; a copy of the complaint; Agreement by and between the Board of Education of the CIUFSD and CSEA, Local 1000 AFSCME, AFL-CIO dated July 1, 2006 through June 30, 2001; and the CSEA Constitution and By Laws.
In cross-motion (002) the defendant, Central Islip Union Free School District (CIUFSD) and Central Islip Union Free School District Board of Education (school board), seek dismissal of each of the causes of action asserted against them in the complaint for failure to state a cause of action. In support of the application, the defendants have submitted, inter alia, the affidavit of Michael A. Wolpert, Assistant Superintendent for Personnel of the CIUFSD; Agreement by and between the Board of Education of the CIUFSD and CSEA CIUFSD and CSEA, Local 1000 AFSCME, AFL-CIO dated July 1, 2006 through June 30, 2001; letter dated April 6, 2009; letter dated July 10, 2009; and a copy of the complaint.
In opposing these motions, the plaintiff, Theresa Hartman, has submitted her affidavit; application dated September 19, 2007 for CSEA membership as a school substitute coordinator; a copy of a pay stub; and a copy of the letter setting forth withdrawal of the claim before the State of New York Public Employment Relations Board, signed by the plaintiff.
Pursuant to CPLR § 3211(a)(7), pleadings shall be liberally construed, the facts as alleged accepted as true, and every possible favorable inference given to plaintiffs ( Leon v. Martinez , 84 NY2d 83, 87, 614 NYS2d 972). On such a motion, the Court is limited to examining the pleading to determine whether it states a cause of action ( Guggenheimer v. Ginzburg , 43 NY2d 268, 275, 401 NYS2d 182). In examining the sufficiency of the pleading, the Court must accept the facts alleged therein as true and interpret them in the light most favorable to the plaintiff ( Matter of Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v. State Educ. Dept. , 116 AD2d 939, 498 NYS2d 516). Only affidavits submitted by the plaintiff in support of the causes of action may be considered on a motion of this nature ( Rovello v. Orofino Realty Co. , 40 NY2d 633, 645-636, 389 NYS2d 314). On such a motion, the Court's sole inquiry is whether the facts alleged in the complaint fit within any cognizable legal theory, not whether there is evidentiary support for the complaint ( Leon v. Martinez , 84 NY2d 83, 87, 614 NYS2d 972; Thomas McGee v. City of Rensselaer , 663 NYS2d 949, 174 Misc2d 491). Dismissal under CPLR 3211(a)(1) is warranted where the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law ( Logatto v City of New York , 51 AD3d 984, 859 NYS2d 469 [2nd Dept 2008]).
First Cause of Action for breach of contract by CIUFSD
To state a cause of action for breach of contract the plaintiff must allege "(1) formation of a contract between the plaintiff and the defendants; (2) performance by the plaintiff; (3) defendants' failure to perform; and (4) resulting damage. . . . In order to plead a breach of contract cause of action, a complaint must allege the provisions of the contract upon which the claim is based and the pleadings must be sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved as well as the material elements of each cause of action or defense. . . . Vague or conclusory allegations will not suffice" ( Barker v Time Warner Cable, Inc, et al , 24 Misc 3d 1213A [Supreme Court of New York, Nassau County 2009]. Here the plaintiff has not pleaded that a contract existed between her and CIUFSD and further fails to specifically plead the provisions of any contract alleged to have been breached. The plaintiff has failed to plead the existence or terms of any agreement between herself and the defendants which establishes a fixed term of employment. Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party ( Sabetay v Sterling Drug, Inc. , 69 NY2d 329). It is determined as a matter of law that the complaint fails to state a cause of action for breach of contract.
Accordingly, the first cause of action fails to state a cause of action for breach of contract and is dismissed.
Second Cause of Action for breach of duty of fair representation by Local 1000
"The duty of fair representation in New York State public sector employment is a judicially developed doctrine which is traceable to Federal law ( see, Matter of Civil Srv. Bar Assn v City of New York , 64 NY2d 188, 474 N.E.2d 587, 485 NYS2d 227). In the Federal courts, it was held that a union is obligated to act 'fairly' toward all employees it represents stemming from its statutory authority and responsibility as their exclusive bargaining representative. In Vaca v Sipes 9386 U.S. 171, 190, 87 S.Ct. 903. . .), the court established the standard for determining when the duty of fair representation is violated. According to the Vaca court, such a breach "occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." ( Vaca v Sipes , supra). The federal law's treatment of a union's breach of its duty of fair representation has been adopted by the New York courts. Thus, in Matter of Civil Srv. Bar Assn v City of New York, supra , the Court of Appeals recognized a similar duty of fair representation. "To sustain a cause of action for breach of the duty of fair representation there must be substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives" ( Mellon v Benker, 186 AD2d 1020, 588 NYS2d 482 )"" ( Calkins et al v Police Benevolent Association of the New York State Troopers, Inc. , 21 Misc3d 1119A [Supreme Court of New York, Ontario County 2007]).
"The duty of fair representation is originally a common law concept which New York State codified in 1990 by amendment to the Fair Employment Act, specifically, N.Y. Civ. Serv. Law § 209-a(2)©. This duty springs from the status of a union as the exclusive agent authorized to negotiate and enforce collective bargaining agreements on behalf of its members. Essentially, the duty is a recognition of the premise that union members must be able to rely upon the good faith efforts of those who represent them in negotiating and enforcing their labor agreements" ( Butler v McCarty et al , 191 Misc2d 318 [Supreme Court of New York, Madison County 2002]).
The plaintiff alleges that Local 1000 and CIUFSD conspired and orchestrated the termination of the plaintiff's employment to ensure the appointment of a personal friend of Local 1000 president Chris Marshall to the position of Teacher Aide in the plaintiff's stead which person was a probationary employee with significantly less experience and seniority than plaintiff. The plaintiff does not plead, however, that her position as a Teacher Aide was a permanent position and how, if in any way, the selection of this other person was in violation of the Agreement. The plaintiff does not allege deceitful action, fraud, dishonest conduct, or intentional discrimination.
The plaintiff claims that she was terminated from CIUFSD without cause and in direct contravention of the collective bargain agreement existing between CIUFSD and Local 1000, and that the failure and refusal of Local 1000 to initiate and/or process any grievance concerning her discharge was in contravention of the collectively bargained agreement existing between CIUFSD and Local 1000, was arbitrary, capricious, discriminatory and in bad faith and a violation of the duty of fair representation owed to the plaintiff by Local 1000. As was set forth above, the plaintiff has failed to plead the existence or terms of any agreement between herself and the defendants which establishes a fixed term of employment. Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party ( Sabetay v Sterling Drug, Inc. , 69 NY2d 329). The Agreement sets forth at page two that "This Agreement shall not apply to substitute or temporary employees except as provided for in Article XXXVI. The plaintiff alleges she was hired as a School Substitute Coordinator effective March 1, 2008 and that on October 3, 2008, an eligibility list for the position of School Substitute Coordinator was established and the plaintiff's position on that list was 12th. She does not plead that she was reachable on the list or was employed in a permanent position. Based upon the documentary evidence, she does not demonstrate that she was covered by the Agreement during her employ as a School Substitute Coordinator and thus entitled to representation. Remaining, therefore, is the period of time that the plaintiff claims she was hired as a Teacher Aide. However, she does not plead that she was hired as a permanent Teacher's Aide or that the position was pursuant to a contract, and thus eligibility for union membership and to be represented under the collective bargaining agreement. It is therefore determined that the plaintiff has not plead a cause of action for breach of duty of fair representation by Local 1000.
"A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Negligence can be an arbitrary act constituting a violation of the duty of fair representation. . . . A union which breaches its statutory duty of fair representation by failing to process a grievance cannot be held responsible for damages attributable solely to the employer's breach of contract. The union is only liable for any increase in damages caused by its neglect in process the grievance ( McKay v Smith , 92 Misc2d 606 [Supreme Court of New York, Monroe County 1977). Here, the documentary evidence establishes that the plaintiff's positions as School Substitute Coordinator or temporary Teacher Aide were not encompassed within the Agreement,
Accordingly, the second cause of action fails to state a cause of action for the duty of fair representation and is dismissed.
Third Cause of Action for Unjust Enrichment of Local 1000
To establish a claim of unjust enrichment, a plaintiff must establish that the defendant benefitted at the plaintiff's expense and that equity and good conscience require restitution ( Whitman Group Realty, Inc. v Galano , 41 AD3d 590 [2nd Dept 2007]). A review of the documentary evidence reveals that Theresa Hartman made application for membership in CSEA in September 19, 2007 as a school substitute coordinator and duly authorized the CSEA to deduct dues based upon her income. The plaintiff asserts that union dues were deducted from her paycheck from September, 2007 through her date of discharge on March 9, 2009. She has further claimed that Local 1000 has denied that she was covered under the union agreement. The plaintiff has therefore set forth a cause of action against Local 1000 for unjust enrichment. Unjust enrichment is barred by a valid and enforceable contract ( Barker v Time Warner Cable, Inc, et al , supra), however, no such contract has been demonstrated.
The Agreement in effect from July 1, 2006 through June 30, 2011 was entered into between the Board of Education of the CIUFSD and CSEA, Local 1000 AFSCME, AFL-CIO. The Agreement sets forth at page two that "This Agreement shall not apply to substitute or temporary employees except as provided for in Article XXXVI. The plaintiff alleges she was hired as a School Substitute Coordinator effective March 1, 2008 and that on October 3, 2008, an eligibility list for the position of School Substitute Coordinator was established and the plaintiff's position on that list was 12th. She claims that pursuant to a January 8, 2009 posting, the plaintiff submitted applications for positions then available with CIUFSD: Teaching Assistant, School Teacher Aide and Contingent Special Education Aide. On February 23, 2009, the plaintiff accepted a position as a Teacher's Aide with CIUFSD commencing February 25, 2009. By letter dated March 3, 2009, Mr. Wolpert explained that the plaintiff's employment as a School Substitute Coordinator was terminated February 23, 2009 as she not "not reachable on the School Substitute Coordinator list and that she had been placed on the Teacher Aide list." On March 9, 2009, Mr. Wolpert advised the plaintiff that her employment as a Teacher's Aide was terminated effective immediately because she was not a member of the union. The Agreement provides for Teacher Aides (Article XII), but does not set forth that School Substitute Coordinator is encompassed in the agreement. The Agreement does not provide membership to temporary or provisional employees. The plaintiff does not assert that her positions with the school district were permanent or that she was not a temporary or provisional employee. The plaintiff has submitted documentary evidence to demonstrate that union dues were being deducted from her paycheck. "Recovery for unjust enrichment is barred by a valid and enforceable contract" ( Barker v Time Warner Cable, Inc. , supra). It is determined that the plaintiff did not state a cause of action for breach of contract. Therefore, it is determined that the plaintiff has stated a cause of action for unjust enrichment for the amount of dues deducted on behalf of the union while she was a School Substitute Coordinator and temporary Teacher's Aide.
Accordingly, that part of the motion (001) which seeks to dismiss the third cause of action for unjust enrichment as asserted against Local 1000 is denied and is granted as to CIUFSD.
Fourth Cause of Action for Conversion by Local 1000 and CIUFSD
"Interference with the right to possession is the essence of a conversion. It is not necessary that one take actual physical possession of property to be guilty of conversion. Any wrongful exercise of dominion by one other than the owner is a conversion. Nor is a wrongful intention to possess the property of another an essential element of a conversion. It is sufficient if the owner has been deprived of his property by the defendant's unauthorized act in assuming dominion and control. No manual taking of the property or application of it to defendant's own use is required. The exercise of dominion over property to the exclusion of and in defiance of the owner's right is a conversion" ( General Electric Company v American Export Isbrandtsen Lines, Inc. et al , 37 AD2d 959 [2nd Dept 1971]).
The plaintiff had submitted to Local 1000 a duly executed application for membership in Local 1000 for the job title of School Substitute Coordinator and her membership was approved in or about September 2007 and she was provided a membership card. Local 1000 membership dues were regularly deducted from the plaintiff's wages paid by the Central Islip Union Free School District (CIUFSD) from her date of employment in September 2007 through the date of her termination on March 2009. The plaintiff further claims that Local 1000 has failed and refused to represent her and CIUFSD had advised her that she was not a member of the collective bargaining agreement, and yet the money deducted by CIUFSD and provided to Local 1000 has not been returned to her. It is therefore determined that the plaintiff has set forth a cause of action for conversion.
Accordingly, motions (001) and (002) for an order dismissing the fourth cause of action sounding in conversion is denied.
Fifth Cause of Action for equitable estoppel precluding the defendants from denying the plaintiff membership in Local 1000 or the benefits of such membership and the applicable CBA
"The doctrine of equitable estoppel is invoked to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought" ( In the Matter of C.M. v S.H. , 16 Misc3d 217 [Family Court of New York, Nassau County 2007]).
The plaintiff does not plead that she was a permanent employee in her capacity as either School Substitute Coordinator or as a Teacher Aide and that therefore she comes under the cloak of the Agreement and was subsequently wrongfully denied membership or benefits of such membership and the applicable CBA (Collective Bargaining Agreement), and thus fails to state a cause of action.
Accordingly, motions (001) and (002) for dismissal of the fifth cause of action is granted and the fifth cause of action is dismissed for failure to state a cause of action.
Sixth Cause of Action for promissory estoppel based upon the promises made to plaintiff by the defendants
"Recovery under the theory of promissory estoppel is not dependent on the existence of a contract or the particulars of consideration in the classic sense. A promissory estoppel action arises out of a breached promise in circumstances under which it is fair to hold the promisor to the terms of his promise. The doctrine is often though of in terms of detrimental reliance, but more recently has been seen as grounded in a theory of promise. . . . In New York, promissory estoppel has had only tentative application. Promissory estoppel is made out by a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of his reliance" ( LAHR Construction Corp. d/b/a LeCesse Construction Company v Kozel Son, Inc. , 168 Misc2d 759 [Supreme Court of New York, Monroe County 1996]). "An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury; and indeed, a party may not, even innocently, mislead an opponent and then claim the benefit of his deception" ( Hover v Claverack Gange No. 934 , 46 Misc2d 114 [Supreme Court of New York, Columbia County 1965]). "With respect to the doctrine of promissory estoppel, a promise which is expected to induce action by the promise, and does induce the action, is binding if injustice can be avoided only by enforcing the promise. Such promise may be invoked only where the aggrieved party can demonstrate the existence of a clear and unambiguous promise upon which he or she has reasonably relied, thereby sustaining injury. . . . Promissory estoppel is available only where a party reasonably relies on the promise, and it would be unconscionable to deny enforcement of the oral agreement ( Kotlyarsky et al v New York Post et al , 195 Misc2d 150 [Supreme Court of New York, Kings County 2003]).
It has already been determined as a matter of law that the plaintiff did not plead a cause of action for breach of contract and has set forth no more than a claim based upon being a non-permanent employee at will. The plaintiff has not pleaded that she was a permanent employee entitled to the protection of the Agreement. In that a hiring at will is terminable at any time by either party ( Sabetay v Sterling Drug, Inc. , supra) and the plaintiff has not pleaded a specific promise of any duration or permanency, it is determined that the plaintiff has failed to state a cause of action for promissory estoppel as a matter of law.
Accordingly, the sixth cause of action for promissory estoppel is dismissed as to Local 1000 and CIUFSD.
Seventh Cause of Action for breach of implied contract by Local 1000
The plaintiff has set forth and has submitted admissible proof demonstrating that she submitted an application for union membership and did receive her membership card as well as a letter from the union confirming her acceptance. Thereafter, dues were deducted from her salary by CIUFSD on behalf of Local 1000. There is no claim that CIUFSD retained any of the deducted monies on their own behalf. It is therefore determined that the plaintiff has sufficiently pleaded a cause of action for breach of an implied contract against Local 1000. Here no valid contract has been established. Although dismissal pursuant to CPLR 3211 may be granted where the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, Goldman et al v Metropolitan Life Insurance Company et al , 5 NY3d 561), the documentary evidence does not establish that these dues were appropriately deducted or whether or not the acceptance of the plaintiff's application for membership was proper and lawful.
Accordingly, that part of motion (001) for dismissal of the seventh cause of action is denied.