Spano v. Kings Park Central School District, 2007 NY Slip Op 33211(U) (N.Y. Sup. Ct. 9/25/2007)
| Decision Date | 25 September 2007 |
| Docket Number | Motion SEQ. No. 001-CASEDISP.,Motion SEQ. No. 003-MD.,0001848/2007.,Motion SEQ. No. 002-CASEDISP. |
| Citation | 2007 NY Slip Op 33211 |
| Parties | ROCCO SPANO Plaintiff, v. KINGS PARK CENTRAL SCHOOL DISTRICT and CSEA. LOCAL 1000, AFSCME, AFL-CIO, Defendants. |
| Court | New York Supreme Court |
Ahern & Ahern, Esqs, Kings Park, New York, Attorneys for Plaintiff.
Ingerman Smith, LLP, Hauppatge, New York, Attorneys for Defendant KINGS PARK..
Nancy F Hoffman, Esq, Albany, New York, Attorney far Defendant CSEA.
UPON the following papers numbered 1 to 158 read on these Motions:
• Defendant KINGS PARK's Motion (Pages 1-40 & Exhibits A-C);
• Defendant CSEA's Motion (Pages 41-68 & Exhibits A-G);
• Plaintiff's Motion (Pages 69-96 & Exhibits A-0);
• Defendant KINGS PARK's Reply (Pages 97-1:37 & Exhibits D-G);
• Defendant CSEA's Reply (Pages 138-158); it is,
ORDERED, that the application of Defendant KINGS PARK is hereby granted in all respects; the application of Defendant CSEA is hereby granted in all respects; and the application of Plaintiff is hereby denied as moot, since the granting of Defendants' applications herein disposes of the within action.
Defendant KINGS PARK moves this Court for an Order dismissing the Causes of Action against Defendant Kings park, upon the grounds that:
1. Plaintiff has failed to exhaust his administrative remedies, as set for in the CBS, including that of binding arbitration;
2. Plaintiff lacks standing to assert his claims;
3. Punitive damages are not permitted in a contract claim against a municipality;
4. A fraud claim cannot be maintained, as it arises out of an alleged breach of the contract;
5. Plaintiff cannot state a claim upon which relief may be granted, as Plaintiff is not qualified for the retirement bonus.
Defendant CSEA moves this Court for an Order, pursuant to CPLR 3211(a)(7), 3211(c) and/or 3212, dismissing the Causes of Action herein against Defendant CSEA, upon the grounds that the Complaint fails to state a Cause of Action.
Plaintiff moves this Court for an Order granting Summary Judgment and/or compelling arbitration.
This action arises out of a claim for a retirement bonus at the time Plaintiff retired from employment with Defendant KINGS PARK as a Custodian, on December 29, 2006, pursuant to a Collective Bargaining Agreement (CBA) between Defendant KINGS PARK and Defendant CSEA, in the amount of $13,000, Plaintiff also seeking $500,000 in punitive damages and reinstatement to his former employment position.
The facts herein clearly demonstrate that Plaintiff was employed by Defendant KINGS PARK in various custodial capacities from January 4, 1995, until his retirement on December 29, 2006; that he was initially hired as a substitute custodian' from January 4, 1995, through August 19, 2006, during which employment he was not a member of Defendant CSEA, nor covered by the CBA between Defendants herein; that Plaintiff became a full-time employee, beginning in the capacity of `probationary custodian', on August 20, 1996, later becoming a `permanent custodian'; arid that Plaintiff took a one year unpaid leave of absence from May 26, 2001, through May 20, 2002.
As pointed out by Counsel for Defendant KINGS PARK, in determining a Motion to dismiss, the scope of review is limited (See: Cron v. Hargro Fabrics, 91 NY2d 362 [1998]); that said Motion will be denied if, from the four corners of the pleadings, factual allegations can be discerned which, taken together, manifest any cause of action cognizable at law (See: 511 West 232nd Owners Corp v Jennifer Realty Co, 98 NY2d 144 [2002]); and that, if there is no rational process by which a jury could find for Plaintiff and against moving Defendant, the Court should dismiss those claims (See: Tormey v Shell Oil Co, 309 AD2d 856 [2 Dept 2003]
Furthermore, if the Court converts the instant Motions into one for summary judgment pursuant to CPLR 3211(c), then in order to grant same it must clearly appear that there are no material issues of fact (See: Sillman v Twentieth Century-Fox Film Corp, 3 NY2d 395 [1957] ); the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (See: Zuckerman v City of New York, 49 NY2d 557[1980]; Sillrnan v. Twentieth Century-Fox Film Corp, supra).
Once a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact is shown, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action. (See: Zuckerman v. City of New York, supra).
In reviewing the five prongs of Defendant KINGS PARK' s Motion, the Court notes the following:
1 As to the argument that this action must be dismissed because Plaintiff has failed to exhaust his administrative remedies, as set for in the CBS, including that of binding arbitration:
At Article V of the CBA between Defendants herein, a four step grievance process is set forth, whereby disputes are to be resolved, culminating in binding arbitration, none of which Plaintiff engaged in. It is wel] settled that, where an employer and a union enter into a CBA that contains grievance procedures, an employee covered by said CBA may not sue the employer directly for breach of said agreement, but must first exhaust the administrative remedies set forth in said agreement (See: Plummer v Klepak, 48 NY2d 486 [1979]; Sheridan v Town of Orangetown, 21 AD3d 365 [2 Dept 2005]; Hall v Town of Henderson, 17 AD3d 981 [4 Dept 2005]; Miller v County of Broome, 197 AD2d 170 [3 Dept 1994]). In fact, exhausting the grievance procedure becomes a condition precedent to an employee's right to file a lawsuit to enforce the contract (See: Brown v County of Nassau, 288 AD2d 216 [2 Dept 2001]).
It is, therefore, apparent that this action must be dismissed due to Plaintiff's failure to exhaust his administrative remedies.
2 As to the argument that this action must be dismissed because Plaintiff lacks standing to assert his claims
The CBA between Defendants herein does not contain a grant to allow an employee to sue in their individual capacity. When an employer and a union enter into a CBA that creates a grievance procedure, an employee who is subject to said CBA may not sue the employer directly for breach of that agreement, but instead must proceed through the union in accordance with that procedure (See: Brd of Ed, Commack UFSD v. Ambach, 70 NY2d 501 [1987]) unless the CBA expressly grants the employee said right to sue in their individual capacity (See: Tomlinson v Brd of Ed, Lakeland CSD of Shrub Oak, 223 AD2d 636 [2 Dept 1996]; Berlyn v Brd of Ed, East Meadow UFSD, 80 AD2d 572 [2 Dept 1981] affirmed 55 NY2d 912 [1982]; Sargent v BOLTS, First Supervisory Dist, Monroe County, 149 AD2d 921 [4 Dept 1989]); and since Plaintiff was subject to the CBA between the Defendants herein, he abrogated his individual right to sue for violations of said agreement (See: Menkes v City of New York, 91 AD2d 654 [2 Dept 1982] appeal dismissed 59 NY2d 602 cert denied 464 US 858 [1983]).
It is, therefore, apparent that this action must be dismissed due to Plaintiff's lacks standing to assert his claims.
3. As to the argument that the Fourth Cause of Action must be dismissed because punitive damages are not permitted in a contract claim against a municipality:
Plaintiff seeks $500,000.00 in punitive damages, but it is well settled that political subdivisions of the state, such as school districts, are no subject to demands for punitive damages (See: Krohn v NYPD, 2 NY3d 329 [2004]); and that punitive damages are not available for a breach of an employment contract (See. Wegman v Dairylea Co-op, Inc, 50 AD2d 108 [3 Dept 1975] appeal dismissed 38 NY2d 918 [1976]; Charles v. Onondaga Community College, 69 AD2d 144 [4 Dept 1979] appeal dismissed 48 NY2d 650 [1979]; unless the breaching party's conduct is so egregious that, in a few instances, punitive damages may be proper, such as where bath faith or a dishonest failure to carry out a contract can be demonstrated (See: Gordon v Nationwide Mut Ins Co, 30 NY2d 427 [1972]), for which no demonstration has been made in the instant matter.
It is, therefore, apparent that the Fourth Cause of Action must be dismissed because punitive damages are not permitted in a contract claim against a municipality.
4. As to lie argument that the Fourth Cause of Action must be dismissed because a fraud claim cannot be maintained, as it arises out of an alleged breach of the contract:
Defendant KINGS PARK argues that the Court could determine that Plaintiff's Fourth Cause of Action, seeking $500,000.00 in punitive damages, was founded in fraud, even though it is not plead with the particularity required by CPLR 3016(b), but even then, it is well settled that a cause of action sounding in fraud will not arise when the only fraud charged relates to a breach of contract (See: Rubinberg v. Correia Designs, Ltd, 262 AD2d 474 [2 Dept 1999]; Colucci v O'Brien, 204 AD2d 257 [2 Dept 1994]; Trusthouse Forte (Garden City) Mgt, Inc v Garden City Hotel, Inc, 106 AD2d 271 [1 Dept 1984]; Scally v Simcona Elec Corp, 135 AD2d 1086 [4 Dept 1987]; Freyne v Xerox Corp, 98 AD2d 965 [4 Dept 1983]; Gould v Community Health Plan of Suffolk, 99 AD2d 479 [2 Dept 1984]); and that, if the only fraud charged relates to a breach of contract, and not to the inducement of making the contract, the fraudulent breach of the contract does not give rise to an action for fraud (See: Regnell v Page, 54 AD2d 540 [1 Dept 1976]; Schenkman v New York...
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