Clark v. Metro. Transp. Auth.

• Decision Date: 20 December 2013
• Docket Number: 107588/2011
• Citation: 2013 N.Y. Slip Op. 23475,46 Misc.3d 344,999 N.Y.S.2d 309
• Parties: R. Thurston CLARK v. METROPOLITAN TRANSPORTATION AUTHORITY.
• Court: New York Supreme Court

46 Misc.3d 344

999 N.Y.S.2d 309

2013 N.Y. Slip Op. 23475

R. Thurston CLARK

v.METROPOLITAN TRANSPORTATION AUTHORITY.

107588/2011

Supreme Court, New York County, New York.

Dec. 20, 2013.

Gail Blasie Esq., Stuart A. Salles, Esq., New York, for Petitioners.

Helene Fromm, Deputy General Counsel, Metropolitan Transportation Authority, New York, for Respondents.

Opinion

LUCY BILLINGS, J.

Respondent MTA Bus Company, a subsidiary of respondent Metropolitan Transit Authority (MTA), has employed petitioners as nonunion managers since July 2005. Both petitioner Clark and petitioner Provetto began their employment with private bus business entities that MTA Bus acquired in 2005. Petitioners allege that, as part of the agreed conditions of their employment, respondents repeatedly promised petitioners and other similarly situated nonunion managers from private bus business entities that they would be considered MTA employees, receive the same benefits as MTA employees, and be placed in the MTA Defined Benefit Plan. The plan, which petitioners refer to as a final average salary pension, allows MTA employees to collect pension benefits equal to a percentage of their final average salary at the time of retirement multiplied by their years of service.

In a written offer of employment accepted by Clark, who was employed by Queens Surface Corporation, MTA Bus specified that:

You will begin participation in the MTA 401(k) plan and MTA Bus will make contributions to that plan on your behalf pursuant to the same terms and conditions as Queens Surface Corporation made to its 401(k) plan.

Am. V. Pet. Ex. 1, at 1. Both written offers of employment accepted by petitioners specified that:

Like all non-represented employees of the MTA and its agencies, the outlined benefits and the like are subject to modification. However, you will not be treated differently than other non-represented MTA employees.

Id. Ex. 2, at 1. See id. Ex. 1, at 2.

Petitioners allege that they relied on these promises and respondents' subsequent oral promises of equal pension benefits in accepting employment with respondents. Petitioners maintain that all managers performing the same functions throughout MTA are enrolled in the MTA Defined Benefit Plan with a final average salary and that respondents' policy is to provide the same pension plan to MTA managers from private entities that MTA acquired, even if those private entities previously provided no final average salary pension plan.

Petitioners further allege, however, that in fact respondents fail to provide the same retirement benefits to petitioners and other nonunion managers from a private entity whom MTA Bus now employs. According to petitioners, all nonunion managers with MTA Bus, Long Island Bus, and New York City Transit Bus perform the same functions and supervise employees from all three entities. Nevertheless, while nonunion managers at the latter two entities receive MTA's pension plan, MTA Bus managers from other private entities only receive the retirement plans carried over from their previous private employers. Clark, for example, has only “a 401k contribution plan” with no pension. Id. ¶ 76. Petitioners also allege that managers at MTA Bus, unlike all other MTA managers, are prohibited from applying their military service time toward their years of service in calculating pension benefits.

Petitioners claim respondents made oral promises as well. Respondents specifically assured petitioners that respondents would enroll petitioners in the final average salary pension plan after the merger, but then repeatedly in 2007, 2008, and 2009 urged petitioners to be patient because respondents were working on resolving the pensions issue. Clark finally wrote to respondents MTA and Walder on March 22, 2011, demanding equal treatment and enrollment in a final average salary pension as respondents had promised both orally and in their written offer of employment. On April 11, 2011, Clark wrote to MTA and Walder again, reminding them that he expected a response. Receiving none, petitioners commenced this proceeding on behalf of themselves and all similarly situated nonunion managers on June 29, 2011.

Petitioners claim that respondents' refusal to provide them retirement benefits equal to other nonunion MTA managers breaches the employment agreements by MTA and MTA Bus with petitioners and violates New York Civil Service Law § 115 and the Equal Protection Clause, Article I, § 11, of the New York Constitution. Petitioners seek declaratory and injunctive relief entitling them and all MTA Bus nonunion managers to enrollment in the MTA Defined Benefit Plan with a final average salary and to retirement benefits equal to other MTA nonunion managers. Petitioners also seek relief entitling them and all MTA Bus employees to count their military service toward their length of employment in calculating pension benefits.

II. RESPONDENTS' MOTION TO DISMISS THE AMENDED PETITION

Respondents move to dismiss the amended petition pursuant to C.P.L.R. §§ 3211(a)(2), (4), (5), and (7) and 7804(f). Respondents maintain, first, that petitioners' claims are not ripe for review and, if ripe, are barred by the applicable statute of limitations. C.P.L.R. § 217(1). Second, this proceeding pursuant to C.P.L.R. Article 78 is not the vehicle for petitioners' claims because petitioners fail to allege any mandatory duty imposed on respondents; Civil Service Law § 115 does not confer a private right of action and does not apply to MTA employees, who are not civil servants; and petitioners allege only a claim for breach of contract. Finally, a federal action by Provetto against respondents precludes his claims here.

Upon respondents' motion to dismiss the amended petition pursuant to C.P.L.R. § 3211(a), the court must accept petitioners' allegations as true, liberally construe them, and draw all reasonable inferences in their favor. Walton v. New York State Dept. of Correctional Services, 13 N.Y.3d 475, 484, 893 N.Y.S.2d 453, 921 N.E.2d 145 (2009) ; Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007) ; IDT Corp. v. Tyco Group, S.A.R.L., 104 A.D.3d 170, 176, 957 N.Y.S.2d 309 (1st Dep't 2012) ; Wadiak v. Pond Management, LLC, 101 A.D.3d 474, 475, 955 N.Y.S.2d 51 (1st Dep't 2012). The court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994) ; Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609, 900 N.Y.S.2d 44 (1st Dep't 2010) ; Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121, 741 N.Y.S.2d 9 (1st Dep't 2002). Dismissal of a claim is warranted under C.P.L.R. § 3211(a)(5) when respondents establish that the claim is barred by the statute of limitations, collateral estoppel, or res judicata. E.g., Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d 38, 43, 933 N.Y.S.2d 204 (1st Dep't 2011;) ; Constructamax, Inc. v. Weber, 109 A.D.3d 574, 576, 971 N.Y.S.2d 48 (2d Dep't 2013).

III. BREACH OF CONTRACT

Respondents urge that petitioners' claims for breach of contract may not be included in a proceeding pursuant to C.P.L.R. Article 78 and in any event are premature, as neither petitioner is at the point of retirement and thus eligible for pension benefits. No authority prohibits consideration of petitioners' breach of contract claims along with their Article 78 claims. A breach of contract claim is not subject to dismissal solely because the claim is not enumerated in C.P.L.R. § 7803. When an Article 78 proceeding includes a claim outside the scope of § 7803, the proceeding may be converted to a plenary action combined with the proceeding in a hybrid form. C.P.L.R. § 103(c) ; Eidlisz v. New York Univ., 15 N.Y.3d 730, 731–32, 906 N.Y.S.2d 520, 932 N.E.2d 876 (2010) ; O'Neill v. New York Univ., 97 A.D.3d 199, 201, 944 N.Y.S.2d 503 (1st Dep't 2012) ; Chatelle v. North Country Community Coll., 100 A.D.3d 1332, 1332, 955 N.Y.S.2d 266 (3d Dep't 2012). See New York State Psychiatric Assn., Inc. v. New York State Dept. of Health, 19 N.Y.3d 17, 22, 945 N.Y.S.2d 191, 968 N.E.2d 428 (2012) ; New York State Superfund Coalition, Inc. v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 289, 292–93, 938 N.Y.S.2d 266, 961 N.E.2d 657 (2011) ; Yatauro v. Mangano, 17 N.Y.3d 420, 425, 931 N.Y.S.2d 36, 955 N.E.2d 343 (2011) ; Phillips v. City of New York, 66 A.D.3d 170, 173 & n. 2, 884 N.Y.S.2d 369 (1st Dep't 2009).

Petitioners allege that their employment agreements with MTA Bus entitle petitioners to join the MTA Defined Benefit Plan with a final average salary, because the terms of the offer specified that petitioners would be treated no differently than other nonunion MTA employees, who are offered the pension benefits petitioners seek. Petitioners further allege that respondents continued to promise petitioners orally that they would be enrolled in the plan after they began their employment. To date, however, respondents have failed to enroll petitioners in the MTA Defined Benefit Plan with a final average salary. Thus petitioners adequately plead claims that respondents have failed to perform as promised under their written and oral contracts. Tini v. AllianceBernstein L.P., 108 A.D.3d 409, 409, 968 N.Y.S.2d 488 (1st Dep't 2013) ; Red Oak Fund, L.P. v. MacKenzie Partners, Inc., 90 A.D.3d 527, 528, 934 N.Y.S.2d 401 (1st Dep't 2011) ; Plaza PH2001, LLC v. Plaza Residential Owners LP, 79 A.D.3d 587, 914 N.Y.S.2d 26 (1st Dep't 2010) ; Morris v. 702 E. Fifth St. HDFC, 46 A.D.3d 478, 479, 850 N.Y.S.2d 6 (1st Dep't 2007). See 225 Fifth Ave. Retail LLC v. 225 5th, LLC, 78 A.D.3d 440, 441–42, 915 N.Y.S.2d 1 (1st Dep't 2010) ; Edge Mgt. Corp. v. Crossborder Exch. Corp., 304 A.D.2d 422, 423, 758 N.Y.S.2d 305 (1st Dep't 2003).

While respondents' written offer to Clark promised his “participation in the MTA 401(k) plan” and MTA Bus's contributions to it “pursuant to the same terms and conditions as Queens Surface Corporation ma...