Portlette v. Metropolitan Transportation Authority

• Decision Date: 12 January 2006
• Docket Number: 6948.
• Citation: 2006 NY Slip Op 00210,25 A.D.3d 389,808 N.Y.S.2d 652
• Parties: ONESHIA PORTLETTE, Appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY, Sued Herein as METROPOLITAN TRANSIT AUTHORITY, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 389

808 N.Y.S.2d 652

2006 NY Slip Op 00210

ONESHIA PORTLETTE, Appellant, v.METROPOLITAN TRANSPORTATION AUTHORITY, Sued Herein as METROPOLITAN TRANSIT AUTHORITY, et al., Respondents.

6948.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 12, 2006.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered February 11, 2004, which granted defendants', Metropolitan Transportation Authority (MTA) and Manhattan and Bronx Surface Transit Operating Authority (MABSTOA), motions to dismiss the complaint in its entirety pursuant to CPLR 3211, unanimously affirmed, without costs.

Plaintiff, appointed as a bus operator by MABSTOA on January 20, 2001, was assaulted while on the job on April 1, 2001.Thereafter, plaintiff was on an authorized disability leave for almost a year until March 11, 2002, when she was deemed capable of returning to full-time employment by independent medical and psychiatric examiners.After plaintiff failed to report for work, MABSTOA terminated her employment as a probationary bus operator on March 26, 2002.An internal memorandum stated that plaintiff was notified of her termination by certified letter on March 26, 2002, and the memorandum explained that plaintiff's probation was tolled as a result of the assault.

Plaintiff was informed on September 13, 2002 by the Transport Workers Union that she had been scheduled for a "contractual grievance hearing."The hearing was rescheduled several times, but eventually on June 13, 2003, when plaintiff and her counsel met with her union representatives, she was told that she had been terminated and that she had no administrative remedies.

On or about June 13, 2003, plaintiff commenced this action against MABSTOA and MTA, having filed a notice of claim in June of the prior year.Plaintiff stated that her date of termination was March 26, 2002; she sought, inter alia, damages for loss of compensation and loss of benefits.Defendants moved to dismiss the complaint pursuant to CPLR 3211.Defendants argued that plaintiff failed to bring a CPLR article 78 proceeding to challenge her termination within four months of her admitted date of termination as prescribed by CPLR 217.Defendants asserted that plaintiff was a probationary employee whose probationary period was tolled as a result of her accident and thus she was still on probation when she was terminated.Consequently, defendants asserted, that precluded plaintiff from appealing under grievance and arbitration provisions of the collective bargaining agreement.

The motion court held that plaintiff should have brought an article 78 proceeding alleging wrongful termination, and that such proceeding was time-barred by the four-month statute of limitations; the court also held that the MTA was an improper party in the action.We agree, and affirm for the following reasons.

On appeal, plaintiff relies on CPLR 217 (2)(b) to assert that her action was timely because it was commenced within four months of knowing that her employee organization breached its duty of fair representation, that is, when she learned that the union was not grieving the termination of her employment.However, CPLR 217 (2)(b) is inapplicable to plaintiff's case since it requires plaintiff to have a cause of action against her employee organization for breach of duty of fair representation.In turn, such cause of action is necessarily...