Klein v. City of New York

Full title: ANDREI KLEIN, M.D., Petitioner v. CITY OF NEW YORK, MICHAEL BLOOMBERG as…

Court: Supreme Court of the State of New York, New York County

Date published: Jul 1, 2010

2010 N.Y. Slip Op. 31771 (N.Y. Sup. Ct. 2010)

Opinion

102163/10.

July 1, 2010.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] EMILY JANE GOODMAN, J.S.C.:

By Decision and Order, dated December 23, 2009, this Court dismissed a proceeding brought by Petitioner, pro se, who alleged that he was effectively a tenured Medical Inspector employed by Respondent New York City Department of Education since 1983, and who sought to compel "Respondents to complete the grievance arbitration procedure under the UFT-DOE contract so that Petitioner can seek judicial review."

Petitioner has apparently brought this proceeding because the Court had noted in its prior decision that a Step 3 grievance, attended by UFT representative, resulted in a decision adverse to Petitioner, dated 1/18/04¹ and, because the union did not file a Step 4 grievance as to this adverse decision, Petitioner could not proceed further, ² absent demonstration that the union breached its duty of fair representation. See Bd of Ed v Ambach, 71 NY2d 501, 511 (1987); Sapadin v Bd of Ed. of the City of NY, 246 AD2d 359 (1^st Dept 1998).

1 The Decision concluded that Klein was not entitled to a review of his termination because he was never appointed to a position as a school medical inspector or as an assistant school medical director (apparently, because he was paid hourly and worked reduced hours).

2 Article 19 of the Collective Bargaining Agreement (Waters' Aff, Ex. 1), provides for grievance procedures, including arbitration. The section states, in relevant part, that

A grievance which has not been resolved by the Chancellor at Step 3 may be appealed by the Union to arbitration. A grievance may not be appealed to arbitration unless a decision has been rendered by the Chancellor at Step 3, except in cases where the decision on the grievance has not been communicated to the aggrieved employee and his/her Union representative by the Chancellor within the time limit specified for Step 3 appeals. The appeal to arbitration shall be filed within 10 working days after receipt of the decision of the Chancellor.

Apparently, in an attempt to cure this deficiency, Petitioner has commenced this proceeding adding Respondents The UNITED FEDERATION OF TEACHERS (UFT) and Michael Mulgrew as President of the United Federation of Teachers (Mulgrew).

The city Respondents cross move to dismiss this proceeding based on res judicata and collateral estoppel, failure to file a notice of claim, the statute of limitations, failure to exhaust administrative remedies and commencement against improper parties, as neither the City of New York nor Mayor Bloomberg employed petitioner.

The UFT and Mulgrew also cross move to dismiss, maintaining that an Article 78 proceeding in the nature of mandamus may not be maintained against UFT as an unincorporated association and may not be maintained against Mulgrew as an officer of the UFT, that the proceeding fails to state a claim of the breach of the duty of fair representation, and that the proceeding is time barred. They cite to a March 9, 2004 letter addressed to Petitioner (which Petitioner admits receiving in his "response' papers), notifying him that "your case cannot be successfully pursued to arbitration" and further noting that Petitioner could file an internal appeal with UFT if he disagreed with the UFT's decision. There is no evidence that any such appeal was filed.

As the City Respondents correctly maintain, this proceeding is barred by the res judicata and collateral estoppel. Further, even if the Court were to reach the relevant issue-whether UFT breached its duty of fair representation-as the UFT correctly points out, petitioner has not met that burden to demonstrate that UFT's failure was deliberately invidious, arbitrary or founded in bad faith. See Sapadin v Bd of Ed. of the City of NY, 246 AD2d 359 (1^st Dept 1998). Thus, Petitioner has failed to demonstrate that he (as opposed to the UFT) could proceed with an Article 78 proceeding against his relevant employer, on the basis that the union breached its duty of fair representation. Moreover, as noted by Respondents, CPLR 217(2)(a)-(b) provides that an Article 78 proceeding against a body or officer for breach of the union's duty of fair representation (and any claims inextricably intertwined therewith) are subject to a four month statute of limitations. See CPLR 217(2)(a)-(b); Dolce v Bayport-Blue Point Union Free School District, 286 AD2d 316 (2^nd Dept 2001). The period commences from the later of four months of the date that the employee knew or should have know that the breach occurred, or within four months of the date that the employee suffers actual harm. See CPLR 217(2) (a). The fact that Petitioner unreasonably believed his case was being processed, despite the March 9, 2004 letter, because he knew of one case that took eight years, does not render this proceeding timely. The Court need not reach the other numerous grounds for dismissal.

ORDERED AND ADJUDGED that the cross motions to dismiss are granted, and the petition is denied and the proceeding is dismissed.

This Constitutes the Decision, Order and Judgment of the Court.