Shroid Const., Inc. v. Dattoma

• Decision Date: 04 May 1998
• Citation: 250 A.D.2d 590,672 N.Y.S.2d 389
• Parties: , 1998 N.Y. Slip Op. 4537 SHROID CONSTRUCTION, INC., Appellant, v. Joseph DATTOMA, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 389

672 N.Y.S.2d 389

250 A.D.2d 590, 1998 N.Y. Slip Op. 4537

SHROID CONSTRUCTION, INC., Appellant, v. Joseph DATTOMA, etc., Respondent.

Supreme Court, Appellate Division Second Department.

May 4, 1998.

Massoud & Pashkoff, P.C., New York City (Lisa Pashkoff, of counsel), for appellant.

James W. Dougherty, P.C., Malverne, for respondent.

Before ROSENBLATT, J.P., and MILLER, COPERTINO and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of a collective bargaining agreement, the plaintiff appeals from an order of the Supreme Court, Queens County (Turret, J.H.O.), dated November 21, 1996, which, upon a decision and order of this court dated March 4, 1996, remitting the matter to the Supreme Court, Queens County, for the calculation of damages to which the plaintiff is entitled as the result of a work slowdown by the defendants, amended its prior order dated April 5, 1994, and determined that the defendants were not responsible for a work slowdown and that there was no award of damages to be calculated.

ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a calculation of damages to which the plaintiff is entitled as the result of the work slowdown, and for the entry of an appropriate judgment.

This is the second appeal resulting from litigation involving a construction project which was governed by a collective bargaining agreement. The plaintiff commenced this action against Joseph Dattoma as president of the International Union of Bricklayers and Allied Craftsmen (hereinafter the Union) to recover damages allegedly sustained when he incited Union members to violate the terms of the collective bargaining agreement. The plaintiff alleged that the defendant's conduct was intended to put economic pressure on the plaintiff to rehire a certain Union member who had been discharged from the project.

After a hearing, the Judicial Hearing Officer issued a "Decision, Findings of Fact and Conclusions of Law" dated February 22, 1994. In relevant part, that document read as follows (italicized portions had been inserted by hand):

"7. That on February 3, 1989, the [Union], through its constituent members, in retaliation for the discharge of [the Union member in question], commenced a work-stoppage at plaintiff's York College project site in contravention and breach of the Collective Bargaining Agreement in full force and effect between the parties hereto.

* * *

"9. That on February 8, 1989, [the Union's] constituent members returned to work at plaintiff's York College project site.

"10. That from February 8, 1989 through and including June 13, 1989, [the Union's] constituent members commenced a work slow-down at plaintiff's York College project site in retaliation for the discharge of [the Union member in question] by plaintiff.

"11. That the work slow-down by [the Union's] constituent members was designed to put economic pressure on plaintiff.

"12. That [the] Union local sanctioned the actions of its constituent members by refusing to direct them back to work or to cease their work slow-down until such time as [the Union member in question] is rehired by plaintiff.

"13. That [the] Union local condoned the actions of its constituent members, and exhibited indifference to plaintiff's plight, by failing and refusing to take any actions or steps to direct its constituent members back to work or to cease their work slow-down.

"14. That as a direct and proximate result of the actions of [the] Union local, its constituent members and agents, plaintiff incurred additional costs and has suffered monetary damages.

"15. That as a direct and proximate result of the actions of [the] Union local, its constituent members and agents, plaintiff has suffered actual damages on Feb 3, 6, and 7, 1989 in the amount of $15,000."

The Supreme Court issued an order dated April 5, 1994, directing the entry of a judgment awarding the plaintiff $15,000 in damages. On appeal by the plaintiff, this court modified the order by awarding the plaintiff an additional $414.12 in damages in accordance with the plaintiff's proof of actual damages resulting from the work stoppage (see, Shroid Constr. v. Dattoma, 225 A.D.2d 538, 639 N.Y.S.2d 78). We also found support for the Judicial Hearing Officer's finding that an improper work slowdown occurred, and concluded that the Judicial Hearing Officer erred in failing to award damages for the work slowdown. Consequently, the matter was remitted for a calculation of damages caused by the work slowdown.

Upon remittitur, the Judical Hearing Officer issued an order dated November 21, 1996, which reads, in relevant part, as follows:

"It was not my intention by these findings of fact to rule that [the] Union acted improperly in any respect to the work slowdown. To the extent that those findings of fact can be construed to so find, they are in the interest of justice amended. I...