Hoerger v. Board of Educ. of Great Neck Union Free School Dist.

• Decision Date: 30 December 1983
• Citation: 471 N.Y.S.2d 139,98 A.D.2d 274
• Parties: , 15 Ed. Law Rep. 881 James W. HOERGER and Edith Hyman, for themselves and on behalf of all others similarly situated, Respondents, v. BOARD OF EDUCATION OF the GREAT NECK UNION FREE SCHOOL DISTRICT, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 139

471 N.Y.S.2d 139

98 A.D.2d 274, 15 Ed. Law Rep. 881

James W. HOERGER and Edith Hyman, for themselves and on behalf of all others similarly situated, Respondents, v. BOARD OF EDUCATION OF the GREAT NECK UNION FREE SCHOOL DISTRICT, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Dec. 30, 1983.

James R. Sandner, New York City (Jacob S. Feldman, New York City, of counsel), for appellant Great Neck Teachers Ass'n, Inc.

Ginsberg, Ehrlich & Reich, Garden City (Steven R. Schlesinger, Garden City, of counsel), for appellant Board of Educ. of the Great Neck Union Free School Dist.

Auerbach, Labes & Woicik, New York City (Henry C. Woicik, New York City, of counsel), for respondents.

Before MOLLEN, P.J., and DAMIANI, MANGANO and GULOTTA, JJ.

PER CURIAM.

The question presented on these appeals is whether Special Term properly granted plaintiffs' motion for class action certification with respect to all their claims against defendant Board of Education of the Great Neck Union Free School District and defendant Great Neck Teachers Association, Inc. We conclude that the motion should have been granted only as to plaintiffs' cause of action for breach of contract against defendant Great Neck Teachers Association, Inc., and otherwise denied.

Named plaintiffs James W. Hoerger and Edith Hyman are former employees of defendant Board of Education of the Great Neck Union Free School District (Board) and were members of the collective bargaining unit represented by defendant Great Neck Teachers Association, Inc. (Union) in its dealings with defendant Board. Hoerger, Hyman and 42 other teachers retired from the school system at the end of the 1981 school year, pursuant to a Retirement Incentive Plan (Plan), jointly developed by the defendants. The Plan, which superseded the defendants' collective bargaining agreement, provided, inter alia, that each employee who was at least 45 years of age, had 15 years of creditable teaching experience, and submitted a letter of resignation by April 15, 1981, to be effective June 30, 1981, would receive a lump sum payment, depending upon the number of participants in the Plan, which amount would be considered in the calculation of each retiree's pension benefits. After June 30, 1981, employees would receive a retirement bonus of $3,000 if they retired by the end of the school year in which they were at least 55 years of age and had at least 20 years of credited teaching service. Since 44 teachers submitted their resignations prior to April 15, 1981, the lump sum benefit to be paid was $13,500 per individual, the Plan's maximum amount.

After the date by which the resignations had to be submitted, but before they became effective, plaintiffs learned that in addition to the 44 employees who were to retire under the Plan, three other employees would also retire effective June 30, 1981. However, these three employees had, with the assistance of defendant Union, separately negotiated the terms of their retirements with defendant Board, and each was to receive a retirement incentive benefit significantly higher than that provided by the Plan--$20,000, $26,000 and $35,000.

On or about August 1, 1981, Hoerger filed, pro se, an individual notice of claim against defendant Board, pursuant to section 3813 of the Education Law. Hoerger claimed "[b]reach of contract, misrepresentation and improper bargaining practices" and asserted damages of $100,000. In addition, both Hoerger and Hyman filed individual grievances against defendant Board, on or about August 18, 1981 and October 1, 1981, respectively, with respect to the payments made to retiring teachers. Defendant Board took the position that, inter alia, since both Hoerger and Hyman had retired prior to the filing of their grievances, they had no standing to proceed under the grievance procedure of the collective bargaining agreement.

Thereafter, in or about January of 1982, the instant action was commenced against defendants by Hoerger and Hyman, who purported to represent themselves and "all other members of the bargaining unit who retired under [the] Retirement Incentive Plan".

The complaint contained essentially two causes of action. First, plaintiffs charged that defendants had breached the collective bargaining agreement by separately negotiating the retirements of three teachers after having presented a specific Retirement Incentive Plan purportedly for all teachers, and accepting plaintiffs' resignations in accordance therewith; and that defendant Union, by participating in said negotiations, breached its duty to represent fairly the interests of all members of the bargaining unit. Second, plaintiffs contended that the defendants had fraudulently induced plaintiffs to retire under the Plan, by representing to them that the Plan was exclusive and the plaintiffs could not bargain individually for a greater retirement incentive than that which the Plan provided. The complaint further recited that a notice of claim had been filed; however, it is clear from the record, and plaintiffs do not contest it, that the only notice of claim ever filed in this action was an individual one on behalf of Hoerger. In its answer, among other affirmative defenses, defendant Board raised the failure of any other class member individually, or anyone on behalf of the class, to have filed a notice of claim in compliance with section 3813 of the Education Law.

Plaintiffs subsequently moved, pursuant to CPLR 902, for a determination that their action be maintained as a class action. They argued, rather summarily, that the class action prerequisites of CPLR 901 (subd. a) had been met in that common issues of fact and law predominated over questions pertaining to individual members, that the claims of the named plaintiffs were typical and that they could adequately represent the class, and that the number of class members--forty four--made joinder impracticable and class action the best method of adjudicating the controversy.

Special Term granted plaintiffs' request for class action certification. However, we find, this was error to the extent indicated herein.

A party seeking class action certification has the burden of establishing the existence of the following five prerequisites (CPLR 901, subd. a):

"1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

"2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;

"3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;

"4. the representative parties will fairly and adequately protect the interest of the class; and

"5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

Additionally, CPLR 902 lists certain considerations that the court is to take into account in determining if an action may proceed as a class action:

"1. the interest of members of the class in individually controlling the prosecution or defense of separate actions;

"2. the impracticability or inefficiency of prosecuting or defending separate actions;

"3. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

"4. the desirability or undesirability of concentrating the litigation of the claim in the particular forum; [and]

"5. the difficulties likely to be encountered in the management of a class action."

The list of factors in CPLR 902 is not intended to be exhaustive. For example, the court may also consider the merits of the action to the extent necessary for the elimination, as early as possible, of spurious actions (see, e.g., Yollin v. Holland America Cruises, 97 A.D.2d 720, 468 N.Y.S.2d 873 [1st Dept.]; Seligman v. Guardian Life Ins. Co. of Amer., 59 A.D.2d 859, 399 N.Y.S.2d 121, mot. for lv. to app. dsmd. 44 N.Y.2d 838, 406 N.Y.S.2d 759, 378 N.E.2d 122; Bloom v. Cunard Line, 76 A.D.2d 237, 240, 430 N.Y.S.2d 607; cf.Simon v. Cunard Line, 75 A.D.2d 283, 288, 428 N.Y.S.2d 952).

On its appeal, defendant Board argues that class action certification was improperly granted as against it on all the causes of action because no former employee other than Hoerger had filed a notice of claim.

Section 3813 (subds. 1, 2) of the Education Law reads, in relevant part, as follows:

"1. No action or special proceeding, for any cause whatever * * * relating to district property or property of schools * * * or claim against the district or any such school, or involving the rights or interest of any district or any such school shall be prosecuted or maintained against any school district, [or] board of education * * * unless it shall appear by and as an allegation in the complaint * * * that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.

"2. Notwithstanding anything to the contrary hereinbefore contained in this section, no action or special proceeding founded upon tort shall be prosecuted or maintained against any of the parties named in this section * * * unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law."

Although not strictly speaking a defense on the merits, defendant Board alleges that since none of the members of the purported class herein, other than Hoerger, had filed a notice of claim, dismissal of the action against it (except as to Hoerger) is required, as such notices are absolute prerequisites to private actions for damages (see Board of Educ. v. New York State Div. of Human Rights [Arluck], 44...