Obot v. New York State Dept. of Correctional Services

• Decision Date: 31 December 1998
• Docket Number: R,No. 1,AFL-CI,J,M,1
• Citation: 682 N.Y.S.2d 767,256 AD2d 1089
• Parties: 1998 N.Y. Slip Op. 11,877 Otu A. OBOT, Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, New York State Public Employees Federationoger Benson, as President of New York State Public Employees Federationane Hallum, as Secretary-Treasurer of New York State Public Employees Federationichael T. Harren, Esq., and Chamberlain D'Amanda Oppenheimer & Greenfield, P.C., Respondents. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 767

682 N.Y.S.2d 767

1998 N.Y. Slip Op. 11,877

Otu A. OBOT, Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, New York State Public Employees Federation AFL-CIO, Roger Benson, as President of New York State Public Employees Federation AFL-CIO, Jane Hallum, as Secretary-Treasurer of New York State Public Employees Federation AFL-CIO, Michael T Harren, Esq., and Chamberlain D'Amanda Oppenheimer &amp Greenfield, P.C., Respondents. (Appeal No. 1.)

Supreme Court, Appellate Division Fourth Department.

Dec. 31, 1998.

Brown & Kelly by Philip Abramowitz, Buffalo, for Plaintiff-Appellant.

Dennis Vacco by Donald Simet, Buffalo, for Defendant-Respondent NYS Dept. of Correctional Services.

William Seamon by Jeffrey Plant, Albany, for Defendant-Respondents Public Employees, Benson & Hallum.

Present: GREEN, J.P., PINE, WISNER, BALIO and BOEHM, JJ.

MEMORANDUM:

On April 8, 1993, defendant New York State Department of Correctional Services (DOCS) filed disciplinary charges against plaintiff, a senior correction counselor, and the matter proceeded to arbitration in accordance with the collective bargaining agreement. An attorney was appointed by defendant New York State Public Employees Federation AFL-CIO (union) to represent plaintiff in the arbitration. On December 13, 1993, the arbitrator found plaintiff guilty of violating two departmental rules, and he was terminated from his position.

By letter dated January 25, 1994, the union informed plaintiff that it would not commence a CPLR article 75 proceeding on his behalf to vacate the arbitration award (see, CPLR 7511). Plaintiff retained his own attorney and, on March 11, 1994, commenced a proceeding to vacate the award. For the first time, plaintiff argued that the charges against him had been initiated to retaliate for his having testified in a racial discrimination case in Federal court. According to plaintiff, he had not raised that argument in the arbitration proceeding because his union attorney "listened to none of this, had no time for it, and wanted [plaintiff] to plead guilty." By letter dated October 24, 1994, plaintiff's attorney informed the union's general counsel that the union "has breached its duty of fair representation to [plaintiff] in all matters connected with the arbitration in this case * * * including its failure to 'sponsor a proceeding to vacate [the] arbitration award' ". On November 9, 1994, Supreme Court granted plaintiff's petition, vacated the arbitration award and ordered a rehearing.

DOCS appealed, and we reversed Supreme Court's order and confirmed the arbitration award (Matter of Obot [New York State Dept. of Correctional Servs.], 224 A.D.2d 1006, 637 N.Y.S.2d 544). The Court of Appeals affirmed, holding that plaintiff did not demonstrate a cognizable legal basis for vacating the award (Matter of Obot [New York State Dept. of Correctional Servs.], 89 N.Y.2d 883, 653 N.Y.S.2d 245, 675 N.E.2d 1197). The Court of Appeals further noted that a proceeding to vacate an arbitration award is not the proper forum for asserting a fair representation claim (Matter of Obot [New York State Dept. of Correctional Servs.], supra, at 886, 653 N.Y.S.2d 245, 675 N.E.2d 1197).

On April 17, 1997, plaintiff commenced the present action against DOCS, the union, its president and its secretary-treasurer, and the union-appointed attorney and his law firm. The first cause of action alleges that the union and the union officers breached their duty of fair representation. The second cause of action alleges that DOCS breached the collective bargaining agreement by terminating plaintiff without just cause. The third cause of action alleges that DOCS violated Civil Service Law § 75-b by terminating plaintiff in retaliation for his testimony in the Federal case. The fourth cause of action alleges that the union-appointed attorney and his law firm were guilty of malpractice.

Supreme Court granted the motions of DOCS, the union and the union officers to dismiss the complaint as time-barred by the four-month Statute of Limitations (see, CPLR 217[2] ). Plaintiff's cause of action for breach of the duty of fair representation accrued either on December 13, 1993, the date of...