Opromalla v. Port Auth. of N.Y. & N.J., INDEX NO. 151283/2017

• Decision Date: 09 July 2018
• Docket Number: INDEX NO. 151283/2017
• Parties: JOSEPH M. OPROMALLA, Plaintiff, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.
• Court: New York Supreme Court

2018 NY Slip Op 31565(U)

JOSEPH M. OPROMALLA, Plaintiff,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.

INDEX NO. 151283/2017

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 47

RECEIVED: July 10, 2018
July 9, 2018

NYSCEF DOC. NO. 29

Motion Sequence No. 001

PAUL A. GOETZ, J.:

The following e-filed documents, listed by NYSCEF document number 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 17, 18, 19, 20, 21, 22, 23, 24, and 25, were considered on the instant motion to dismiss.

Plaintiff Joseph M. Opromalla brings this action for breach of the collective bargaining agreement between defendant Port Authority of New York and New Jersey (hereinafter, the Port Authority) and nonparty Port Authority Police Sergeants Benevolent Association (hereinafter, the SBA). Defendant Port Authority moves, pursuant to CPLR 3211 (a) (7) and (c), to dismiss the complaint for failure to state a cause of action.

BACKGROUND

The following facts are taken from the complaint. Plaintiff alleges that, at all relevant times, he was employed by the Port Authority as a police sergeant in the Port Authority Police Department (complaint, ¶ 2). According to plaintiff, police sergeants in the Port Authority Police Department are employed pursuant to a Memorandum of Agreement between the Port Authority and the SBA (id., ¶ 4). On January 6, 2016, the Port Authority Police Department issued a Police Detective Sergeant Promotional Opportunity Announcement for promotion to the rank of detective sergeant, which included the screening criteria and described the selection

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process (id., ¶¶ 6, 7). Plaintiff submitted an application in response to the announcement (id., ¶ 7). Thereafter, on February 1, 2016, the Port Authority Police Department issued a Police Lieutenant Promotional Opportunity Announcement (id., ¶¶ 7, 8). The announcement described the screening criteria and selection process (id., ¶ 8).

According to the complaint, on February 10, 2016, plaintiff learned that he was ineligible for promotion to the ranks of lieutenant and detective sergeant (id., ¶ 9). Michael Ford of the Port Authority's Human Resources Department told plaintiff that he had been disqualified because of poor ratings received on the development appraisal, which the Port Authority uses for all promotion candidates (id.). Plaintiff alleges that Lieutenant Kenneth Talon conducted the development appraisal, and that he has a longstanding bias against plaintiff's advancement in the force (id., ¶ 10). He also alleges that it is the Port Authority's custom and practice to have development appraisals conducted by a current commanding officer and/or a commanding officer who had the most interaction with the applicant (id., ¶ 14). Nevertheless, Lieutenant Talon was not in plaintiff's direct chain of command at the time, and had not interacted with plaintiff for a significant amount of time when Lieutenant Talon did the appraisal (id.). Further, plaintiff alleges that it is the Port Authority Police Department's custom and practice to use separate development appraisals for each application for promotion (id., ¶ 16).

The complaint asserts two causes of action for breach of contract (id., ¶¶ 24-29). According to plaintiff, section XXI and Appendix J of the Memorandum of Agreement require the Port Authority to list the elements of evaluation that would be utilized in a promotion evaluation and to then follow those criteria (id., ¶ 12). Plaintiff alleges that the Port Authority breached the Memorandum of Agreement "[b]y using the improperly prepared Development Appraisal to block Plaintiff's consideration for promotion" to detective sergeant and lieutenant,

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and "by continuing to deny Plaintiff's application to be promoted" to detective sergeant and lieutenant (id., ¶¶ 25, 28).

The Port Authority moves to dismiss, arguing that: (1) the Port Authority's alleged conduct complied with the Memorandum of Agreement; and (2) the alleged violations of the Memorandum of Agreement cannot be litigated in this action.

DISCUSSION

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016]). However, "bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, are not...