Opinion
September 30, 1987
Appeal from the Supreme Court, Steuben County, Curran, J.
Present — Dillon, P.J., Doerr, Boomer, Pine and Lawton, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: Defendants contend that Special Term erred in failing to grant their motion to dismiss plaintiff's complaint. We agree. Plaintiff's complaint alleges that defendant unions were negligent and breached their duty of fair representation to decedent by failing to provide a safe workplace. It is also alleged that decedent was a third-party beneficiary of the job safety provisions of a contract between the State of New York and the Operational Services Unit of CSEA, Inc. Plaintiff has no cause of action for negligence, as the alleged failure by the unions to provide safe working conditions is not wholly outside the ambit of the collective bargaining agreement (Condon v. Local 2944, 683 F.2d 590; Herington v. Civil Serv. Employees Assn., 130 A.D.2d 961). The sole cause of action available to plaintiff is for breach of fair representation (Herington v. Civil Serv. Employees Assn., supra). To sustain such a claim, a union member must allege bad faith, arbitrariness or discrimination on the part of the union (Vaca v. Sipes, 386 U.S. 171; Matter of Civil Serv. Bar Assn. v. City of New York, 64 N.Y.2d 188). Here, plaintiff does not allege that decedent was singled out and discriminated against, but rather that the unions breached their general duty to their members to provide a safe place to work. These allegations at best establish mere negligence, which is insufficient to sustain a cause of action for breach of a union's duty of fair representation (Smith v Sipe, 109 A.D.2d 1034, revd for reasons stated in dissenting mem 67 N.Y.2d 928; Ferrara v. American ACMI, 122 A.D.2d 930). Also, as decedent was not a State employee intended to benefit from the contract between the State and the Operational Services Unit of CSEA, Inc., plaintiff's cause of action as a third-party beneficiary to this contract cannot stand (Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 336-337).