Lyndaker v. Bd. of Educ. of W. Can. Valley Cent. Sch. Dist.

• Decision Date: 19 June 2015
• Docket Number: 261 CA 14-01650
• Parties: Marlin LYNDAKER, Plaintiff–Respondent, v. BOARD OF EDUCATION OF WEST CANADA VALLEY CENTRAL SCHOOL DISTRICT, West Canada Valley Central School District and John Banek, Superintendent, West Canada Valley Central School District, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1561

12 N.Y.S.3d 430

2015 N.Y. Slip Op. 05299

Marlin LYNDAKER, Plaintiff–Respondent

v.BOARD OF EDUCATION OF WEST CANADA VALLEY CENTRAL SCHOOL DISTRICT, West Canada Valley Central School District and John Banek, Superintendent, West Canada Valley Central School District, Defendants–Appellants.

261 CA 14-01650

Supreme Court, Appellate Division, Fourth Department, New York.

June 19, 2015.

Girvin & Ferlazzo, P.C., Albany (Christopher J. Honeywell of Counsel), for Defendants–Appellants.

Martin & Rayhill, P.C., Utica (Kevin G. Martin of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.

OpinionMEMORANDUM:

Plaintiff, a retired teacher, commenced this action alleging that defendants failed to process his application for enrollment in the New York State & Local Retirement System (NYSLRS) and that such failure deprived him of additional service credit for his part-time employment with defendant West Canada Valley Central School District (District), which in turn resulted in him losing certain pension benefits. Defendants filed a pre-answer motion seeking to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7). During oral argument on the motion, plaintiff consented to dismissing the action against defendant John Banek, Superintendent, West Canada Valley Central School District. Supreme Court denied the motion with respect to the remaining defendants, and all three defendants appeal. We note at the outset that Banek is not aggrieved by the order appealed from, and we thus dismiss his appeal (see CPLR 5511 ). We agree with the remaining defendants that the court erred in denying those parts of the motion seeking to dismiss the second and third causes of action against them for failure to state a cause of action, and we therefore modify the order accordingly.

We agree with defendants that the court erred in denying that part of the motion seeking dismissal of the second cause of action insofar as it alleges a breach of fiduciary duty. It is well settled that a fiduciary relationship does not exist between a school district as employer and a teacher as employee (see Lasher v. Albion Cent. Sch. Dist., 38 A.D.3d 1197, 1198, 833 N.Y.S.2d 791 ; see generally Matter of Lorie DeHimer Irrevocable Trust, 122 A.D.3d 1352, 1352–1353, 997 N.Y.S.2d 863 ). We also agree with defendants that the court erred in denying that part of the motion seeking dismissal of the second cause of action insofar as it alleges a violation of the Employee Retirement Income Security Act of 1974 ( [ERISA] 29 USC § 1001 et seq. ). ERISA does not apply where, as here, the employee benefit plan is a governmental plan (see § 1003 [b][1] ).

We further agree with defendants that the court erred in denying that part of their motion seeking to dismiss the third cause of action, which alleges violations of New York's Education Law and Retirement and Social Security Law. We conclude that plaintiff does not have a private right of action under those laws. Where, as here, the crux of plaintiff's third cause of action is that defendants' actions resulted in the improper reporting of his service credits to the State Retirement System, “the appropriate forum for resolution of this aspect of [plaintiff's cause of action] is the promised administrative hearing” pursuant to Retirement and Social Security Law § 74(d) (Matter of Cole–Hatchard v. McCall, 4 A.D.3d 715, 716, 772 N.Y.S.2d 415 ). The State Comptroller has exclusive jurisdiction to determine such matters (see Marsh v. New York State & Local Employees' Retirement Sys., 291 A.D.2d 713, 714, 738 N.Y.S.2d 438 ). Because Retirement and Social Security Law § 74 provides the exclusive remedy for the alleged wrongful act asserted in plaintiff's third cause of action, the court erred in recognizing a separate, private right of action inconsistent with the legislative scheme (see generally McLean v. City of New York, 12 N.Y.3d 194, 200–201, 878 N.Y.S.2d 238, 905 N.E.2d 1167 ; Negrin v. Norwest Mtge., 263 A.D.2d 39, 47, 700 N.Y.S.2d 184 ).

Contrary to defendants' contention, we conclude that the court properly denied that part of the motion seeking dismissal of the remaining three causes of action as time-barred pursuant to CPLR 3211(a)(5). With respect to that part of their motion, defendants had “ ‘the initial burden of establishing prima facie that the time in which to sue has expired’ ” (Larkin v. Rochester Hous. Auth., 81 A.D.3d 1354, 1355, 916 N.Y.S.2d 694 ). The applicable limitations period for the first and fourth causes of action, alleging unjust enrichment, and breach of applicable collective bargaining agreements and implied contracts, respectively, is one year from accrual (see Education Law § 3813[2–b] ). We conclude that the limitations period for the first cause of action alleging unjust enrichment “ ‘start[ed] to run upon the occurrence of the wrongful act giving rise to a duty of restitution’ ” (Boardman v. Kennedy, 105 A.D.3d 1375, 1376, 964 N.Y.S.2d 337 ; see North Salem Cent. Sch. Dist. v. Mahopac Cent. Sch. Dist., 1 A.D.3d 418, 419, 768 N.Y.S.2d 11, lv. dismissed in part and denied in part 1 N.Y.3d 620, 777 N.Y.S.2d 14, 808 N.E.2d 1274 ). We conclude that the alleged wrongful act occurred no earlier than May 18, 2012, when defendants could have but failed to rectify the oversight that resulted in plaintiff losing certain pension benefits. The complaint alleges that, at a meeting on May 18, 2012, plaintiff received notification from the District that, despite being eligible for enrollment in NYSLRS, he was not going to be retroactively enrolled and thus would not receive certain pension benefits. The complaint further alleges that the District assured plaintiff that the error would be rectified. We conclude that, when the District thereafter failed to rectify the error, it wrongfully withheld property from plaintiff (see generally Sitkowski v. Petzing, 175 A.D.2d 801, 802, 572 N.Y.S.2d 930 ). Inasmuch as plaintiff served a timely notice of claim on August 17, 2012, and commenced this action within one year of that meeting, we conclude that the cause of action alleging unjust enrichment is not time-barred.

With respect to the fourth cause of action,...