Mercone v. Monroe Cnty. Deputy Sheriffs' Ass'n, Inc.

• Decision Date: 30 December 2011
• Citation: 2011 N.Y. Slip Op. 09752,936 N.Y.S.2d 826,90 A.D.3d 1698
• Parties: Antonio MERCONE, Plaintiff–Appellant, v. MONROE COUNTY DEPUTY SHERIFFS' ASSOCIATION, INC., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09752
90 A.D.3d 1698
936 N.Y.S.2d 826

Antonio MERCONE, Plaintiff–Appellant,
v.
MONROE COUNTY DEPUTY SHERIFFS' ASSOCIATION, INC., Defendant–Respondent.

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

Dec. 30, 2011.

[936 N.Y.S.2d 827]

Frank A. Aloi, Rochester, for Plaintiff–Appellant.

Trevett Cristo Salzer & Andolina, P.C., Rochester (Daniel P. Debolt of Counsel), for Defendant–Respondent.

[936 N.Y.S.2d 828]

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

[90 A.D.3d 1698] Plaintiff, a former Monroe County Deputy Sheriff, was discharged from that position by letter dated December 15, 2004. Pursuant to paragraph 35.3.1 of the applicable collective bargaining agreement (CBA) between Monroe County (County), the County Sheriff and defendant, the union representing plaintiff, the parties had 10 business days from the date of plaintiff's discharge to file a grievance and demand arbitration thereof. Plaintiff testified at trial that defendant's outgoing president assured him that a grievance had been timely filed on his behalf. When a new president assumed the duties of office in February 2005, however, he discovered that no grievance had been filed. The new president and other union officers attempted to file a grievance with the County or demand arbitration on several occasions, but they were unsuccessful. Defendant subsequently filed a demand for arbitration with respect to plaintiff's discharge with the Public Employment Relations Board, and Supreme Court (Frazee, J.) granted the petition[90 A.D.3d 1699] of the County and the County Sheriff seeking to stay arbitration. Plaintiff commenced this action on or about August 9, 2005 seeking to recover damages for defendant's breach of the duty of fair representation. Plaintiff appeals from an order and judgment dismissing the complaint.

We reject the contention of plaintiff that Supreme Court (Rosenbaum, J.) erred in determining that the action was time-barred. An action against a union for breach of its duty of fair representation “shall be commenced within four months of the date the ... former employee knew or should have known that the breach has occurred, or within four months of the date the ... former employee suffers actual harm, whichever is later” (CPLR 217[2][a] ). Here, “the harm complained of ... occurred when defendant allegedly breached its duty of fair representation by refusing to file the grievance” within the time limits imposed...