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Prof'l Staff Cong. v. City Univ. of N.Y. & Queens Coll.

New York State Court of Claims
May 19, 2015
# 2015-049-028 (N.Y. Ct. Cl. May. 19, 2015)

Opinion

# 2015-049-028 Motion No. M-85700

05-19-2015

PROFESSIONAL STAFF CONGRESS v. CITY UNIVERSITY OF NEW YORK and QUEENS COLLEGE

Meyer, Suozzi, English & Klein, P.C. By: Jessica Drangel Ochs, Esq. Eric T. Schneiderman, New York State Attorney General By: Ellen S. Mendelson, Assistant Attorney General


Synopsis

Case information


UID:

2015-049-028

Claimant(s):

PROFESSIONAL STAFF CONGRESS

Claimant short name:

PROFESSIONAL STAFF CONGRESS

Footnote (claimant name) :

Defendant(s):

CITY UNIVERSITY OF NEW YORK and QUEENS COLLEGE

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):

M-85700

Cross-motion number(s):

Judge:

DAVID A. WEINSTEIN

Claimant's attorney:

Meyer, Suozzi, English & Klein, P.C. By: Jessica Drangel Ochs, Esq.

Defendant's attorney:

Eric T. Schneiderman, New York State Attorney General By: Ellen S. Mendelson, Assistant Attorney General

Third-party defendant's attorney:

Signature date:

May 19, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This matter is before the Court on a motion by claimant Professional Staff Congress ("PSC"), a labor union representing the faculty of defendant City University of New York ("CUNY"), to file a late claim alleging that defendant breached a contract in failing to comply with the terms of a settlement agreement reached with PSC member Andrew Silver.

The case has a somewhat convoluted procedural history. On January 30, 2014, a complaint arising out of the alleged breach of contract was filed in Supreme Court. An identical complaint (bearing a Supreme Court caption) was filed in the Court of Claims on the same date, and assigned Claim No. 123864-A. No action was taken on the suit filed here, while defendant moved to dismiss the complaint in Supreme Court on the ground that the Court lacked subject matter jurisdiction over a claim for money damages against CUNY. By order dated August 8, 2014, Supreme Court denied the motion to dismiss, but ordered the case be transferred to the Court of Claims. The Supreme Court pleadings were received by the Clerk's Office of this Court on August 29, 2014, and the case was assigned (or associated) with Claim No. 123864-A.

In its present submission, CUNY indicates that a summons and complaint was served on it on January 31, 2014, but was not served on the Attorney General (Ltr from Mendelson to the Court, March 19, 2015 ["Mendelson Ltr"]). It is not clear from this submission why no answer was filed, but since the complaint filed in this Court was identified as a Supreme Court pleading, it is not surprising that its service upon CUNY did not alert the defendant that there was a separate action pending against it in the Court of Claims.

On September 26, 2014, claimant moved to file a late claim in this Court. Defendant filed an affirmation in opposition. At points, the affirmation appears to presume that a motion to dismiss claim 123864-A is pending here, although no such motion has been filed, nor has CUNY answered the transferred claim (see e.g. Def. Aff. ¶ 2 [submission is in "further support of motion to dismiss the claim"]). Thus, claimant now seeks to file a late claim although its original claim remains pending in this Court, as of yet unchallenged.

The claimant's motion is supported by the affirmation of counsel, and a copy of the verified claim filed in the Supreme Court proceeding. The allegations in the claim are as follows:

Silver was employed, beginning in September 2003, as a college laboratory technician at the School of Earth and Environmental Sciences at Queens College (Claim ¶ 11). He was reappointed on a yearly basis until he was informed by the College in September, 2007 that he would not be reappointed for the coming year (id. ¶ 16). In October 2007, PSC filed a grievance on Silver's behalf, pursuant to its collective bargaining agreement ("CBA") with CUNY (id. ¶ 18).

The grievance was resolved via a settlement agreement, which provided that Silver's reappointment would be determined by a select faculty committee, whose recommendation CUNY would follow (id. ¶ 21). Such reappointment would be "retroactive to September 1, 2008, subject to the financial ability and approval" of the CUNY Board of Trustees (id.). The settlement agreement is signed by both Silver and PSC, as well as representatives of CUNY and Queens College.

The faculty committee recommended Silver's reappointment, and the Board of Trustees approved it in the Fall of 2010 (id. ¶¶ 23-24). Silver reported back to work on October 22, 2010, but CUNY did not provide him with backpay and benefits retroactive to September 2008 (id. ¶ 29). PSC contends that this was a breach of the settlement agreement, and seeks a declaration to that effect, as well as a directive that defendant "make Silver whole for all earnings, compensation, bonuses and benefits," including "pension credits, medical insurance, life insurance and accrued vacation," as well as various other relief, including attorneys' fees and costs for PSC (id.). The claim was verified by PSC's Director of Legal Affairs Peter Zwiebach, not by Silver.

CUNY has responded to the motion with an attorney affirmation, arguing that the motion fails to meet the elements of Court of Claims Act § 10(6). In particular, it argues that claimant had failed to show an appearance of merit, inter alia, because PSC "has no right to sue on [Silver's] behalf," and thus lacks standing (Def. Aff. ¶ 10).

By letter dated February 17, 2015, I sought additional submissions from the parties on the question of whether PSC has standing to bring a claim on behalf of Andrew Silver, and as to the current status of the pending Claim No. 123864-A. Each party has responded to this letter, presenting various legal arguments discussed further below. In addition, PSC has submitted portions of its Collective Bargaining Agreement ("CBA") with CUNY, outlining the grievance procedures invoked by Silver here. In particular, the CBA permits a grievance to be filed by the employee directly, or by the union on his or her behalf (CBA § 20.4). In the latter instance, any settlement must be agreed to in writing by the CUNY Office of Labor Relations and "the PSC Central Office" (CBA § 20.8). PSC also provided the Court with a letter it filed to initiate an appeal of a Step Two grievance decision on Silver's behalf. The letter states: "The Grievant [i.e. Silver] understands that the PSC, by filing and presenting this grievance at Step Two . . . shall retain the exclusive right to determine whether or not to subsequently file and/or process this grievance at arbitration."

PSC also submitted a second letter dated April 3, 2015, seeking leave to respond to CUNY's submission. Since I grant the late claim motion, I deny that application as moot.

The letter is signed by the PSC representative only. Although there is a space for Silver's signature, it is blank.

Discussion

I. Status of Prior Claims

Before I can address the late claim motion filed by PSC, a preliminary question presents itself: whether such a motion is necessary at all, since a claim is already pending in this Court. As noted above, on January 30, 2014, PSC filed its claim here at the same time as a complaint was filed in Supreme Court. Then, when the Supreme Court action was transferred here, it was filed as if it were an amendment to the original claim, still bearing the Supreme Court caption. As noted, defendant has not answered either claim, nor has it sought their dismissal.

Supreme Court may transfer a case to any other Court with jurisdiction over it, including the Court of Claims (see Liddy v DeStaso, 2 AD3d 792 [2d Dept 2003]; Wynne v Destaso, 2 AD3d 841 [2d Dept 2003]). Such a transfer, however, does not make the case compliant with the jurisdictional prerequisites of this Court. According to the Second Department, the determination as to whether the Court of Claims has jurisdiction must be made by this Court following transfer (id.).

The Third Department, on the other hand, has held that if a claim is transferred to the Court of Claims that does not comply with the provisions of Court of Claims §§ 10 and 11, this Court has no jurisdiction to hear it (see Nish v Town of Poestenkill, 179 AD2d 929, 930 [3d Dept 1992]; State of New York v Dewey, 260 AD2d 924 [3d Dept 1999]). Since the claim here challenges the actions of Queens College, it is governed by the law of the Second Department.

As noted, defendant has submitted no such answer and no motion has been filed here. It appears on the claim's face, however, that it was filed more than six months after accrual, and therefore outside the filing deadline for a breach of contract action set forth in Court of Claims Act § 10(4). Nevertheless, a timeliness defense must be raised in a pre-answer motion to dismiss or the responsive pleading itself, or else it is waived (see Court of Claims Act § 11[c]). While CUNY argues in its opposing affirmation and subsequent letter that the claim was not filed within the time period allowed by the Court of Claims Act, it has not acted to dismiss the claim on this basis.

The fact that a claim is already pending in this Court does not, however, prevent me from addressing claimant's motion to file a late claim under section 10(6). If that motion is granted, claimant will have leave to file a new claim, and the parties may simply stipulate to dismissal of the earlier one. I turn, then, to that motion.

II. The Late Claim Motion

I may grant claimant's late claim motion only if the new claim can be commenced "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10[6]). A breach of contract claim is subject to a six-year statute of limitations (see CPLR 213). The alleged breach in this instance occurred when Silver was reinstated in 2010, without receiving retroactive pay. The motion was filed within six years of that event, and I thus have jurisdiction to grant late claim relief.

In determining whether such relief is appropriate, I must consider the factors listed in the statute, whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).

With respect to the existence of a valid excuse for the failure to timely serve and file a claim, PSC asserts that it filed the claim "in good faith" in Supreme Court (see Cl. Aff. ¶ 17).

Although the precise reasoning behind the Supreme Court decision to transfer the case was set forth in an oral ruling not in the record before me, its ruling would appear compelled by Education Law § 6224(4), which grants the Court of Claims exclusive jurisdiction over claims against CUNY for monetary damages arising out of a breach of contract (see Feher v John Jay Coll. of Criminal Justice, 37 AD3d 307, 308 [1st Dept 2007] ["claims for breach of contract . . . against [CUNY] are not within the jurisdiction of Supreme Court, and are cognizable only before the Court of Claims . . ."]). Thus, claimant's decision to proceed initially in Supreme Court amounts to an error of law, which does not constitute a valid excuse for purposes of section 10(6) (see Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991]). Indeed, claimant essentially concedes this point in its reply affirmation (see Reply Aff. ¶ 7 ["PSC provided no excuse for filing a late claim"]).

Defendant does not oppose the application with respect to the factors of notice, opportunity, and prejudice or alternative remedy. These factors are therefore deemed to weigh in claimant's favor (see Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A], 2006 NY Slip Op 51775[U], at *2 [Ct Cl, 2006] [defendant's failure to address certain section 10(6) factors "entitles the court to presume that they weigh in favor of granting the motion"]; Fine v State of New York, 10 Misc 3d 1075[A], 2005 NY Slip Op 52240[U] at *4 [Ct Cl 2005] [late claim factors not opposed by the defendant are "presumed to weigh in Claimant's favor"]). As to an alternative remedy, it would appear - given the Supreme Court's earlier decision to transfer the matter - that the only avenue for the relief sought by claimant is in this Court.

The final factor is whether the claim has an "appearance of merit," generally considered the "most important" criterion in regard to a section 10(6) application (see Matter of Professional Charter Servs. v State of New York, 166 Misc 2d 306, 308 [Ct Cl 1995]). In particular, it would be "futile" to permit the filing of a "a legally deficient claim which would be subject to immediate dismissal" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]). For a claim to have an appearance of merit, two factors must be met: (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).

Defendant's core argument in regard to this test is that PSC cannot meet the first element because the union itself has not suffered an injury in fact, and has no standing to bring a claim for money damages on Silver's behalf (Def. Aff. ¶ 10). PSC argues in response that since it is a signatory to Silver's settlement agreement, it "has standing to enforce it" (Cl. Reply ¶ 8). Further, it contends that it has standing to sue in its capacity as the "certified bargaining representative" of the unit of which Silver is a member (id. ¶ 9), and that such standing is provided for by the Taylor Law, and under the terms of the relevant CBA. The former states in pertinent part that an employee organization such as PSC "shall be the exclusive representative, for the purposes of this article, of all the employees in the appropriate negotiating unit, and the appropriate public employer shall be, and hereby is, required to negotiate collectively with such employee organization in the determination of, and administration of grievances arising under, the terms and conditions of employment of the public employees as provided in this article" (Civil Service Law § 204[2]). As noted above, the CBA gives authority to PSC to bring grievances on its members' behalf.

Defendant also argues that PSC's arguments cannot be properly assessed because it has not submitted a proposed claim (Def. Aff. ¶ 9). But that is not so - it has submitted the claim filed in Supreme Court, which was, by order of that Court (on defendant's motion), transferred here. Defendant also argues that there is no indication that PSC was an intended beneficiary of the Settlement Agreement (id. ¶ 10). No such showing is required, however, since it was an actual party to that Agreement (cf. Magdalena v Lins, 123 AD3d 600, 600-601 [1st Dept 2014] [plaintiff cannot bring breach of contract action when it is "neither a party . . . nor an intended third party beneficiary of [the] agreement"]).

As a general matter, an action must be prosecuted in the name of the real party in interest, "unless it is specifically provided otherwise" (see NY Jur 2d, Parties § 32; see also Caprer v Nussbaum, 36 AD3d 176, 182 [2d Dept 2006] ["one does not, as a general rule, have standing to assert claims on behalf of another"] [citations omitted]). Nevertheless, "there are situations in which representative or organizational standing is permitted" (Caprer, 36 AD3d at 182). Indeed, specific allowance for an action to be brought by someone other than the party in interest is set forth in CPLR 1004, which provides (with emphasis added): "Except where otherwise prescribed by order of the court, an executor, administrator, guardian of the property of an infant, committee of the property of a judicially declared incompetent, conservator of the property of a conservatee, trustee of an express trust, insured person who has executed to his insurer either a loan or subrogation receipt, trust agreement, or other similar agreement, or person with whom or in whose name a contract has been made for the benefit of another, may sue or be sued without joining with him the person for or against whose interest the action is brought."

Claimant argues that PSC meets the test for organizational standing set forth in Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva (92 NY2d 326, 331 [1998]): (1) "one or more of its members has standing to sue"; (2) "the interests advanced are sufficiently germane to [claimant's] purposes to satisfy the court that [claimant] is an appropriate representative of those interests"; and (3) "the participation of the individual members is not required to assert this claim or to afford [claimant] complete relief." Applying this test here, defendant does not contest Silver's own standing to bring this action, and the interests advanced - compliance with the settlement of a grievance brought by the union itself - is clearly within PSC's bailiwick. The question then comes down to whether Silver's own participation is necessary for this action to proceed.

This test involves organizations seeking to "challenge governmental action" (see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]). It is at best unclear whether it applies to instances where the organization seeks pecuniary damages on behalf of a member (see Matter of Encore Coll. Bookstore, Inc. v. City Univ. of N.Y., 2008 NY Slip Op 33294[U] [Sup Ct, NY Cty, 2008] [Court of Appeals cases on organizational standing "involved associations challenging governmental action on behalf of their constituent membership", but did not involve "direct and specific pecuniary damage to the petitioner or one of its members"]). In any case whether or not this is the appropriate test, the heart of the inquiry is the same: Is PSC an appropriate party to represent Silver's interests in this case, in which he has not been joined as a party?

As set forth below, there is a question of whether Silver actually could proceed without the union here. That would be the case, however, only in the event the union possesses the sole authority to enforce the grievance procedures of the CBA - that is, if the question of the union's standing were answered in the affirmative to begin with.

There is little authority addressing the specific issue of a union's right to recover damages on an employee's behalf under circumstances comparable to those now before me. The caselaw concerning the respective rights of the union and employee to bring a breach of contract action arising out the grievance procedures provided for by a collective bargaining agreement has typically arisen in the inverse context: where the employee seeks to bring suit individually, rather than allow for the union to act on his behalf. In such circumstances, "an employee subject to the [CBA] may not sue the employer directly for breach of that agreement, but must proceed through the union, in accordance with the contract" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987]; see also Yakkey v County of Nassau, 121 AD2d 716, 717 n * [2d Dept 1986] ["the individual members of the union have no standing to assert a claim under the collective bargaining agreement, except through their union"] [citation omitted]). The only exceptions to this rule are when the "contract provides otherwise," or "the union fails in its duty of fair representation" (Ambach, 70 NY2d at 508).

The flip side of this proposition is at least implicit in the Ambach line of cases: when an employee does not have a right to bring such an action, the union does. As Yakkey put it, individual employees cannot sue for a breach of a CBA because they may act "through their union" (121 AD3d at 717 n *). Indeed, to hold the contrary would be to find that there is no remedy at all for the violation of a CBA.

The principle that the employee cannot sue for a breach of a CBA, except in limited circumstances, was articulated long before Ambach (see e.g. Chupka v Lorenz-Schneider Co., 12 NY2d 1 [1962]; Matter of Soto (Goldman), 7 NY2d 397 [1960]). Ambach here is used as shorthand for this line of authority.

Nonetheless, there are several distinctions between the present case and the context of Ambach and its progeny, and defendant makes additional arguments against the union's standing. These are addressed below.

First, in this case the union does not allege a violation of the CBA itself, but rather a breach of a settlement agreement to resolve a grievance brought under the procedures set forth in the CBA. But the bar on employee suits (and concomitant principle that a union may represent its members in court) seems to extend more broadly than actions brought directly under the CBA, to cover "any agreement which [employees] attempted to make with their employer relating to the matters covered by collective bargaining," and which are "necessarily subject to the collective bargaining agreement itself" (Chupka v Lorenz-Schneider Co., 12 NY2d 1, 6 [1962]; see also Abrams v Board of Educ. of City of Yonkers, 91 AD2d 618, [2d Dept 1982] [union has "authority to act on behalf of petitioners in pursuing their rights as accrued under the collective bargaining agreement" despite their retirement, since "such rights as [the employee] may have are derived from the very agreement that entrusts their enforcement to the union"]). Indeed, in Ambach itself, the Court defended the bar on CBA-related suits by individual employees as crucial to the operation of the grievance system:

"Grievance procedures have been recognized as serving the interests of all parties involved in collective bargaining. They enable the union to participate in administering the contract it negotiated; they aid the employer by channeling grievances into one forum providing one set of remedies; and they permit efficient protection of employee rights. . . . Allowing individual employees to circumvent the grievance procedure in favor of other remedies as a general matter would impair those interests, deprive the parties of the opportunity to 'establish a uniform and exclusive method for orderly settlement of employee grievances', and 'inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.' Moreover, disrupting the contract's settlement procedures in this fashion has been viewed as threatening the union's authority as representative and weakening the individual employee's protection" (Ambach, 70 NY2d at 509 [citations omitted]).

These principles would seem as applicable to a suit addressing the results of the grievance process, like the one at hand, as they are to a suit to enforce the CBA itself.

Second, unlike the CBA addressed in Ambach, the grievance procedure set forth in the PSC contract allows either the employee or the union to control the process, although the submissions on the present matter indicate that Silver opted for the latter. There is some indication in the caselaw that the presence of such an option might deprive the union of its exclusive right to sue. Thus, in Matter of Diaz v Pilgrim State Psychiatric Ctr. of State of N.Y. (62 NY2d 693 [1984]), the Court of Appeals allowed an employee's suit challenging an arbitration award to proceed because "the contract . . . entitles the employee to file a grievance, elect to demand arbitration . . . and request the appointment of an arbitrator and the scheduling of a hearing," distinguishing those cases involving CBAs that "did not give the employee the options which he had in this case" (id. at 696). Diaz did not, however, indicate what option the employee chose in the matter before it, or whether its holding would apply even when the employee agrees to allow the union to control the grievance process. Indeed, in Ambach, the plaintiff could have filed a complaint with the State Education Commissioner rather than opting to use the CBA grievance process, and the Court found that plaintiff's decision to pursue the latter was an "election of consequence," precluding him from later switching paths (see 70 NY2d at 509). Here, PSC's submission shows (for purposes of this motion) that Silver made a comparable "election" to give it control over his grievance, and the principle that it should be the entity to bring an action arising out of the settlement of such grievance is applicable to this case (see Matter of Hosp v Seniuk, 86 AD2d 667, 669 [2d Dept 1982] [since it was the union "which maintained the grievance proceeding . . . it was a necessary party in the within proceeding"]). In any case, it is consistent with the caselaw cited above that PSC be allowed to bring suit for a violation of the settlement it negotiated and signed, in a grievance process it controlled, established by a CBA to which it (and not Silver) was a party.

As noted above, the document submitted by claimant to show such delegation of authority to the union was not signed by Silver. There is sufficient other evidence in the record, however, including in the complaint verified on personal knowledge by the PSC director of legal affairs, to make an adequate showing for purposes of this motion that Silver vested control of his grievance in PSC (see e.g. Verified Cl. ¶ 10 ["at all relevant times, Silver was represented by the PSC"]; id. ¶ 18 ["PSC filed a grievance against Defendants on Silver's behalf . . . ."]).

Various courts appear to have adopted different positions on this issue. In Goosley v Binghamton City School Dist. Bd. of Educ. (101 AD2d 942, 943 [3d Dept 1984]), the Third Department held that where plaintiff is permitted to (but need not) select a union representative for the grievance process - and the employee did so - it does not preclude an individual action. But in Abrams v Board of Educ. of City of Yonkers (91 AD2d 618, 620 [2d Dept 1982]), the Court found that no individual union member had the right to file suit when the CBA "had expressly reserved to individual union members the right to proceed individually at the arbitration and postarbitration stages of the grievance process, but the petitioners never objected to the union's carrying their brief until they commenced the instant proceeding."

Third, as CUNY notes, this is a damages actions, rather than one merely seeking injunctive relief such as specific performance as was the case in most of the caselaw cited above (see Mendelson Ltr at 1 [distinguishing cases where union sought "declaratory judgment" from one "seeking monetary damages on behalf of one individual"]). Nevertheless, there is no indication in the caselaw that a union's standing turns on the nature of the remedy. For example, in Aloi v Board of Educ. of W. Babylon Union Free School Dist. (81 AD2d 874 [2d Dept 1981]), individual employees and the union sought both a declaratory judgment "and to recover monetary damages" for an alleged breach of a collective bargaining agreement. The Court found that the individual members had no standing to bring such a claim, but the union could continue the action "on behalf of its members" (id. at 874; see also Berlyn v Board of Educ. of E. Meadow Union Free School Dist., 80 AD2d 572, 573 [2d Dept 1981] [dismissing employee action for damages; "[a] union member has no individual rights under a collective bargaining agreement which he can enforce against his employer except through the union"]). It directed the defendant employer to "to pay to the union, on behalf of the plaintiff employees," the money it determined was due them (Aloi, 81 AD2d at 876).

Fourth, this case implicates the rights of only one union member, rather than a broader group or its membership as a whole. While one case could be read to imply that this might make a difference in determining whether the union or employee is the proper party to proceed (cf. Matter of Civil Serv. Bar Assn., Local 237 v City of New York, 99 AD2d 264, 269 [1st Dept 1984] [union members did not have right to challenge settlement involving "group or union-wide dispute - as distinct from a grievance on behalf of a particular individual"]), that decision is contradicted by numerous other rulings, which have found the union the appropriate party to challenge a violation of a CBA even when the rights of only a single employee are at stake (see e.g. Menkes v City of New York, 91 AD2d 654 [2d Dept 1982] [individual union member has abrogated right to sue under CBA by joining union]; Altman v Rossi, 107 AD3d 1223 [3d Dept 2013] [individual employee cannot sue employer directly for violation of CBA but "must proceed, through the union, in accordance with the contract"]).

Finally, there is the question of whether the Ambach rule is applicable to this case at all - i.e., even if an employee lacks standing to bring a suit for violation of a CBA (or of the settlement of a grievance brought pursuant to the CBA), does that necessarily mean that the union does have such standing? I find that an affirmative answer to this question is an appropriate corollary to the principles set forth in the caselaw cited above.

In accordance with section 204, a number of decisions have recognized that unions have a recognized legal authority to bring actions on behalf of their members arising out of a violation of the collective bargaining agreement or the grievance process established thereby. Thus, in Matter of Hosp v Seniuk, supra, the Second Department dismissed an Article 78 petition by an individual employee challenging the outcome of a grievance filed on behalf of a class of employees (including petitioner) by a union. The Court held that while the employee had the right under the applicable CBA to file an individual grievance, only the union had done so, and therefore only it had standing to challenge the result. Several other cases, while not addressing the issue directly, also appear to have recognized the right of a union to act on behalf of its members under such circumstances. For example, in Matter of County of Broome (Rauen) (130 AD2d 811 [3d Dept 1987]), the Third Department held that "[a] union is entitled to bring an action on behalf of its members to construe the members' rights under a collective bargaining agreement." Moreover, as noted above, if neither the union nor the employee has such right, then the employer may violate the CBA (or agreements to settle grievances arising out of the CBA) with impunity, and no one will have a remedy.

In any case, whatever the contours of the union's ability to represent an employee in a damages action in this Court, I find that there are numerous factors weighing in favor of such representation under the particular circumstances of this case. For one thing, the evidence before me indicates that Silver chose to act through the union, and in doing so gave the union the "exclusive right" whether to pursue the grievance (PSC Letter Ex. 2). In addition, the union itself was a party to the contract at issue, and the sole cause of action set forth in the claim concerns the breach of that agreement. Further, there is no evidence that Silver has made any effort to bring suit himself, or to object to the union proceeding on his behalf.

CUNY points to one Court of Claims decision that reached the opposite conclusion: Police Benevolent Assn. of N.Y. State Police v State of New York (79 Misc 2d 334 [Ct Cl, 1974]). In that case, the claimant union sought to recover monetary benefits on behalf of certain of its members it alleged were lost by the State's failure to introduce certain legislation in accordance with the timetable set by the CBA. The Court dismissed the claim on a number of grounds, including its assessment that the relief sought by claimant - specific performance - was an equitable remedy outside the power of this Court to grant. In reaching that decision, the Court made the following observation:

"[T]he claimant contends that it has a right to maintain an action on behalf of its membership. The courts of New York State have continually maintained that if the promisee suffers no more than nominal damages, any action at law would be inadequate, and, therefore, a promisee is entitled to a decree in equity of specific performance. Accordingly, the association's only adequate remedy lies in equity for specific performance enforcing the collective bargaining agreement. The right to maintain an action at law for money damages belongs to those members of the association, who have been allegedly damaged by the action of the State. As third-party beneficiaries of the collective bargaining agreement, these employees have a right to institute legal action" (id. at 337-338 [citation omitted]).

The Court's presumption that individual employees may enforce a collective bargaining agreement as third-party beneficiaries is clearly not the law in New York State today (see Fiore v Town of Whitestown, 125 AD3d 1527, 1530 [4th Dept 2015] [employee had no right to enforce CBA as third-party beneficiary]; Lundgren v Kaufman Astoria Studios, Inc., 261 AD2d 513, 513 [2d Dept 1999] [same]). In any case, it is not apparent, at this stage of proceeding, that the only relief sought in this action is equitable in nature, and CUNY presents no argument in that regard.

Claimant seeks a broad array of relief in this action, including being "made whole" for loss of pension credits, accrued vacation, and medical and life insurance. In granting this motion, I make no finding as to whether all of the relief sought by claimant is in its "essential nature . . . to recover money," and therefore appropriate for this Court (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], citing Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). I find only that, on the basis of the submissions before me, and upon consideration of the specific objections raised by defendant, claimant has sufficiently demonstrated the appearance of merit for purposes of section 10(6).

In light of the above, I find that the union has presented a non-frivolous legal basis for its standing to represent Silver in this action, and in the absence of any other challenges by CUNY to the legal grounds for its claim, such claim has the appearance of merit. Thus, after considering all the section 10(6) factors, I find their balance tips in favor of granting PSC's motion.

Accordingly, having reviewed the submissions and having considered all of the factors enumerated in Court of Claims Act § 10(6), IT IS ORDERED that motion no. M-85700 be granted as against CUNY, and that within thirty (30) days of the filing of this Decision and Order, claimant shall serve and file a properly verified claim in the form of the claim transferred from Supreme Court, appropriately captioned for the Court of Claims and entitling it Claim. In serving and filing the claim, claimant shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a. Claimant's application to file a late claim naming the State of New York as a defendant is denied.

The parties shall address in subsequent proceedings before the Court how best to address Claim No. 123864-A, including whether they will agree to stipulate to its dismissal.

May 19, 2015

Albany, New York

DAVID A. WEINSTEIN

Judge of the Court of Claims Papers Considered: 1. Claimant's Notice of Motion, Affirmation in Support and annexed exhibits. 2. Defendant's Affirmation in Opposition. 3. Claimant's Affirmation in Reply to Defendant's Affirmation in Opposition to Claimant's Motion for Permission to File a Late Claim. 4. Defendant's Letter to the Court dated March 19, 2015. 5. Claimant's Letter to the Court dated March 20, 2015.


Summaries of

Prof'l Staff Cong. v. City Univ. of N.Y. & Queens Coll.

New York State Court of Claims
May 19, 2015
# 2015-049-028 (N.Y. Ct. Cl. May. 19, 2015)
Case details for

Prof'l Staff Cong. v. City Univ. of N.Y. & Queens Coll.

Case Details

Full title:PROFESSIONAL STAFF CONGRESS v. CITY UNIVERSITY OF NEW YORK and QUEENS…

Court:New York State Court of Claims

Date published: May 19, 2015

Citations

# 2015-049-028 (N.Y. Ct. Cl. May. 19, 2015)