Vanyo v. Buffalo Police Benevolent Ass'n, Inc.

• Decision Date: 16 March 2018
• Docket Number: 950,CA 17–00249
• Citation: 159 A.D.3d 1448,73 N.Y.S.3d 827
• Parties: Ann VANYO, Plaintiff–Appellant, v. BUFFALO POLICE BENEVOLENT ASSOCIATION, INC., and City of Buffalo, Defendants–Respondents. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1448

73 N.Y.S.3d 827

Ann VANYO, Plaintiff–Appellant,

v.BUFFALO POLICE BENEVOLENT ASSOCIATION, INC., and City of Buffalo, Defendants–Respondents. (Appeal No. 2.)

950

CA 17–00249

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: March 16, 2018

JAMES OSTROWSKI, BUFFALO, FOR PLAINTIFF–APPELLANT.

CREIGHTON, JOHNSEN & GIROUX, BUFFALO (IAN HAYES OF COUNSEL), FOR DEFENDANT–RESPONDENT BUFFALO POLICE BENEVOLENT ASSOCIATION, INC.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF COUNSEL), FOR DEFENDANT–RESPONDENT CITY OF BUFFALO.

PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

MEMORANDUM AND ORDERMemorandum:

This case arises from the termination of plaintiff's employment as a police officer with defendant City of Buffalo (City) following arbitration conducted pursuant to a collective bargaining agreement (CBA) between the City and defendant Buffalo Police Benevolent Association, Inc. (PBA). After a hearing, the arbitrator found plaintiff guilty of the disciplinary charges pending against her and that termination was the appropriate penalty, and the City subsequently terminated plaintiff's employment on October 16, 2014. Plaintiff commenced an action against the City and the PBA by filing a summons and complaint (original complaint) on February 10, 2015. Plaintiff, however, never served defendants with the original complaint. Instead, on May 21, 2015, plaintiff filed an "amended" summons and amended complaint (amended complaint), which was served upon defendants on May 26, 2015. In the amended complaint, which included four causes of action that had been alleged in the original complaint, plaintiff alleged that: (1) the PBA breached its duty of fair representation;

(2) the City breached the CBA in terminating her employment; (3) defendants conspired to breach the duty of fair representation and the CBA in order to unlawfully terminate her; and (4) the City violated her constitutional right to procedural due process. The amended complaint added a fifth cause of action, alleging gender discrimination by the City.

Defendants each moved to dismiss the amended complaint against them pursuant to CPLR 3211(a)(5) and (7) and, before Supreme Court ruled on those motions, plaintiff moved pursuant to CPLR 306–b seeking an order extending the time within which to serve the original complaint and deeming the original complaint timely served nunc pro tunc. In appeal No. 1, plaintiff appeals from an order and judgment that, as relevant here, denied her motion pursuant to CPLR 306–b. In appeal No. 2, plaintiff appeals from an order and judgment that, inter alia, granted defendants' motions and dismissed the original complaint and amended complaint. Because the appeal from the order and judgment in appeal No. 2 brings up for review the propriety of the order and judgment in appeal No. 1, the appeal from the order and judgment in appeal No. 1 must be dismissed (see Smith v. Catholic Med. Ctr. of Brooklyn & Queens , 155 A.D.2d 435, 435, 547 N.Y.S.2d 96 [2d Dept. 1989] ; see also CPLR 5501[a] [1] ).

Plaintiff contends that the court erred in denying her motion pursuant to CPLR 306–b seeking an order extending the time within which to serve the original complaint and deeming the original complaint timely served nunc pro tunc, such that the first and second causes of action would be timely. We reject that contention. "If service is not made upon a defendant within the time provided in [ CPLR 306–b ], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service" (id. ). It is well settled that the determination to grant "[a]n extension of time for service is a matter within the court's discretion" ( Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ). "[A]lthough law office failure and the lack of reasonable diligence in effectuating service generally do not constitute good cause, the interest of justice standard of the statute [is] a separate, broader and more flexible provision [that may] encompass a mistake or oversight as long as there was no prejudice to the defendant" ( id. at 102, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ; see Moss v. Bathurst, 87 A.D.3d 1373, 1374, 930 N.Y.S.2d 695 [4th Dept. 2011] ). Upon weighing the relevant factors with respect to the interest of justice standard, including the expiration of the statute of limitations with respect to the first and second causes of action and plaintiff's failure to move for an extension of time for over seven months after the service period expired, we conclude that the court did not abuse its discretion in denying plaintiff's motion pursuant to CPLR 306–b (see Leader, 97 N.Y.2d at 106–107, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ; Moss, 87 A.D.3d at 1374, 930 N.Y.S.2d 695 ; see also Matter of Druyan v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 128 A.D.3d 617, 618, 10 N.Y.S.3d 210 [1st Dept. 2015] ; Matter of Parrino v. New York City Bd. of Stds. & Appeals, 90 A.D.3d 931, 932, 934 N.Y.S.2d 813 [2d Dept. 2011] ).

Contrary to plaintiff's contention, we conclude that the court properly dismissed the first and second causes of action alleged in the amended complaint inasmuch as they are untimely. With respect to the first cause of action against the PBA, an action against a union for breach of its duty of fair representation "shall be commenced within four months of the date the ... former employee knew or should have known that the breach has occurred, or within four months of the date the ... former employee suffers actual harm, whichever is later" ( CPLR 217[2][a] ; see Mercone v. Monroe County Deputy Sheriffs' Assn., Inc., 90 A.D.3d 1698, 1699, 936 N.Y.S.2d 826 [4th Dept. 2011] ). Inasmuch as "the second cause of action against [the City] is inextricably intertwined with the breach of the duty of fair representation cause of action against the [PBA], it is similarly governed by the four-month period of limitations" ( Obot v. New York State Dept. of Corr. Servs., 256 A.D.2d 1089, 1090, 682 N.Y.S.2d 767 [4th Dept. 1998] ; see Yoonessi v. State of New York, 289 A.D.2d 998, 999, 735 N.Y.S.2d 900 [4th Dept. 2001], lv denied 98 N.Y.2d 609, 746 N.Y.S.2d 693, 774 N.E.2d 758 [2002], cert denied 537 U.S. 1047, 123 S.Ct. 602, 154 L.Ed.2d 521 [2002] ). Here, plaintiff suffered actual harm on October 16, 2014 when she was terminated, but the amended complaint, i.e., the only pleading with which defendants were served, was filed well beyond the applicable four-month limitations period (see CPLR 217[2] [a], [b] ). By arguing that the amended complaint filed on May 21, 2015 was untimely, defendants clearly were taking the position that May 21, 2015 was the date on which plaintiff's claims were interposed.

Plaintiff nonetheless contends that the first and second causes of action are timely because her claims relate back to the original complaint, which was timely filed before the expiration of the four-month limitations period (see CPLR 203[f] ). We reject that contention. Pursuant to CPLR 203(f), "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." It is well established that "the ‘linchpin’ of the relation back doctrine [is] notice to the defendant within the applicable limitations period" ( Buran v. Coupal, 87 N.Y.2d 173, 180, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ; see Cole v. Tat–Sum Lee, 309 A.D.2d 1165, 1167, 765 N.Y.S.2d 89 [4th Dept. 2003] ). Here, it is undisputed that the original complaint was never served on defendants. The original complaint thus did not give defendants notice of the transactions or occurrences to be proved pursuant to the amended complaint. The claims in the amended complaint, therefore, are measured for timeliness by service (or filing in this case) of the amended complaint (see Siegel, N.Y. Prac § 49 at 69 [5th ed 2011] ). "Because no one was served until [after the statute of limitations expired], there is no basis to conclude that defendant[s] had any idea that a lawsuit was pending, much less that [they] would be ... named [as] defendants," within the applicable limitations period ( Cole, 309 A.D.2d at 1167–1168, 765 N.Y.S.2d 89 ; see Cracolici v. Shah, 127 A.D.3d 413, 414, 4 N.Y.S.3d 506 [1st Dept. 2015] ; see generally Hirsh v. Perlmutter, 53 A.D.3d 597, 599, 863 N.Y.S.2d 44 [2d Dept. 2008] ).

While the dissent notes that a party may amend a pleading as of right "at any time before the period for responding to it expires" ( CPLR 3025 [a] ), plaintiff did not do so here (cf. Cracolici, 127 A.D.3d at 414, 4 N.Y.S.3d 506 ; Schroeder v. Good Samaritan Hosp., 80 A.D.3d 744, 746, 915 N.Y.S.2d 302 [2d Dept. 2011] ; O'Keefe v. Baiettie, 72 A.D.3d 916, 917, 899 N.Y.S.2d 326 [2d Dept. 2010] ; see also CPLR 320[a] ). Plaintiff's amended complaint was filed and served without leave of court and outside the timeframes of CPLR 3025(a) that permit amendment without leave. Plaintiff's amendment thus was one for which leave of court was required and, absent the establishment of the relation-back doctrine, the claims are deemed interposed on the date the motion for leave is served, assuming that the motion is granted (see Vastola v. Maer, 48 A.D.2d 561, 565, 370 N.Y.S.2d 955 [2d Dept. 1975], affd 39 N.Y.2d 1019, 387 N.Y.S.2d 246, 355 N.E.2d 300 [1976] ; Calamari v. Panos, 131 A.D.3d 1088, 1090, 16 N.Y.S.3d 824 [2d Dept. 2015] ). Here, even if plaintiff had moved for leave on May 21, 2015, the date on which she filed the amended complaint, absent the relation-back doctrine, that would be the date on which the claims in the amended pleading would have been deemed to have been interposed. Furthermore, defen...