Deneen v. City of New York

• Decision Date: 18 September 1980
• Citation: 106 Misc.2d 785,435 N.Y.S.2d 434
• Parties: Edwin J. DENEEN, Plaintiff, v. The CITY OF NEW YORK, Defendant.
• Court: New York City Court

Page 434

435 N.Y.S.2d 434

106 Misc.2d 785

Edwin J. DENEEN, Plaintiff, v. The CITY OF NEW YORK, Defendant.

Civil Court of the City of New York, Bronx County.

Sept. 18, 1980.

Edwin J. Deneen, plaintiff, pro se.

Allen G. Schwartz, Corp. Counsel of the City of New York, for defendant; Ellen B. Fishman, New York City, of counsel.

BENJAMIN F. NOLAN, Judge.

To help the City of New York to survive a fiscal emergency, plaintiff's union and the City entered into a written agreement in 1975 to defer for one year wage increases admittedly due plaintiff and other members of his union. When five years lapsed and the City continued to refuse to pay plaintiff any of the deferred wages, plaintiff, pro se, sued the City herein for payment in Small Claims Court. The City now moves to dismiss the complaint because plaintiff did not first seek relief under arbitration before resorting to the court, and, because the action is premature since ambiguities in the agreement have indefinitely suspended the City's obligation to pay the deferred wages to at least 1982. Recently, in Albert v. City of New York, 101 Misc.2d 356, 421 N.Y.S.2d 513, this court upheld a claim identical to the one at bar and rendered judgment in favor of Albert. However, Appellate Term reversed (Albert v. City of New York, Appellate Term, First Dep't., Law Journal, May 1, 1980). Now, the City contends that on the authority of that reversal this court must dismiss the complaint herein.

In Albert, this court held that Albert had brought himself within the guidelines of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, in which the Supreme Court of the United States held that an employee whose rights were abused by his union could resort to direct judicial suit instead of being limited to contractual arbitration remedies likely to be of dubious value because they would be within the sole discretion of the very union which had already abused his rights. But, Appellate Term held that Albert had not brought himself within those guidelines because there had not been even an intimation in Albert of bad faith or unfair representation by the union. This conclusion, however, is so clearly contradicted by the record in Albert that this court could not possibly conform to it. For instance, the City admitted in Albert (as it does herein) that the union, in collaboration with the City, put together what was proclaimed to be a one year wage deferral agreement but then rendered the agreement ambiguous as to date of termination by the insertion of conditions which left payment of the deferred wages suspended indefinitely to the prejudice of the employees. While acknowledging its own role in the drafting of the ambiguous agreement, the City cavalierly suggested in Albert that, instead of suing the City, Albert should have sued his own union for breach of his union's fiduciary duty to him. A union which enters into a bad collective bargaining agreement as statutory representative of employees who were powerless to do anything about it, is guilty of improper union representation. (Union Free School Dist. v. Div. of Human Rights, 43 A.D.2d 31, 35, 349 N.Y.S.2d 757). Indeed, it is thus clear that there was much more than an intimation of bad faith or unfair union representation in Albert.

Contrary to the impression one might obtain from a cursory reading of the Appellate Term opinion in Albert, no arbitration panel ever passed upon Albert's claim. The references in that opinion to the findings of an arbitration panel relate to findings in an entirely different matter, that is, in Matter of Coalition Unions (Office of Collective Bargaining, Docket No. A-743-78; I-141-78) by an arbitration panel which in 1978 was called upon by a coalition of unions not including Albert's or this plaintiff's union to (1) interpret the wage deferral agreements of the coalition unions, and, (2) to fashion a new economic agreement between the City and the coalition unions. That panel found that the wage deferral agreements of the coalition unions did not contain any clear and explicit language "indicating that the City's contingent liability for payment of the deferred wage increase was to continue until such time as conditions for payment were met", and, that "the date of June 30, 1978 (specified in the agreement) was related to the expiration of the contract " (Emphasis supplied). Those same conclusions apply to the wage deferral agreements applicable to Albert's and this plaintiff's union because the wage deferral agreements of the coalition unions were identical to those applicable to Albert's and this plaintiff's union when originally drawn in 1975 as shall be more specifically illustrated, infra.

In addition to interpreting the coalition deferral agreements, the arbitration panel in Matter of Coalition Unions, supra, was obligated to fashion a new economic agreement between the City and the coalition unions. In furtherance thereof, the City and the coalition unions desired to continue the wage deferral but the panel concluded that the 1975 wage deferral agreements of the coalition unions (identical to Albert's and this plaintiff's) had expired, and, because of their ambiguities with respect to date of termination, had to be reformed. The panel then proceeded to reform and rewrite the agreements, extending the deferrals to at least July 1, 1982, or whenever thereafter the specified conditions were met. The wage deferral agreements of Albert's and this plaintiff's union have never been reformed or rewritten. They still call upon the City to pay the deferral wages by June 30, 1978.

Like Albert, the plaintiff herein has been aggrieved by the ambiguities of the wage deferral agreement. However, unlike Albert, this plaintiff did ask his union to act on his behalf, but his union refused, saying it was inclined to follow the conclusion of Matter of Coalition Unions, supra, that the deferred wages are not payable before July 1, 1982. As pointed out supra, that conclusion applied only to the reformed and rewritten agreements of the coalition unions and not to Albert's or this plaintiff's wage deferral agreements.

Appellate Term's suggestion in Albert (also alleged by the City, herein) that a claim of this kind should be treated differently because other claimants might bring similar actions is clearly misplaced. It would be violative of this court's oath if it denied a claim of this kind because its grant would have an effect upon the claims of others. Besides, a Small Claims judgment is not res judicata except as to amount (Sec. 1808, New York City Civil Court Act); and, the amount of the claim was not an issue in Albert, nor is it an issue herein.

Appendix "B" to the plaintiff's deferral agreement recites unequivocally and unambiguously that "the period of deferral shall commence July 1, 1975 and terminate June 30, 1976." But, even if there was any substance to the City's contention that the ambiguities of the agreement suspend indefinitely the City's obligation to pay the wage increases, can it be said that such obligation is suspended forever? A promise to defer is no different than a promise to forbear. Where conditions render such a promise indefinite as to duration, the promise continues to be legally binding only for a time reasonably long enough for the condition to be performed. (Strong v. Sheffield, 144 N.Y. 392, 39 N.E. 330; Trader's Nat. Bank v. Parker, 130 N.Y. 415, 29 N.E. 1094; Perkins v. Proud, 62 Barb. 420; Jamaica Tobacco & Sales Corp. v. Siegel, 40 A.D.2d 686, 336 N.Y.S.2d 258). Here five years have already elapsed without the...