Yoonessi v. State of New York

• Decision Date: 21 December 2001
• Citation: 735 N.Y.S.2d 900,289 A.D.2d 998
• Court: New York Supreme Court — Appellate Division
• Parties: MAHMOOD M. YOONESSI, Appellant,<BR>v.<BR>STATE OF NEW YORK, Respondent. (Claim No. 91461.)

289 A.D.2d 998

735 N.Y.S.2d 900

MAHMOOD M. YOONESSI, Appellant,

v.STATE OF NEW YORK, Respondent. (Claim No. 91461.)

Decided December 21, 2001.

Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Burns, JJ.

Order

unanimously affirmed without costs.

Memorandum:

Claimant commenced this action against defendant, his former employer, alleging that defendant breached the collective bargaining agreement between defendant and claimant's union, the United University Professions (UUP). The Court of Claims properly granted defendant's motion for summary judgment dismissing the claim. It is well settled that, "when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract" (Matter of Board of Educ. v Ambach, 70 NY2d 501, 508, cert denied sub nom. Margolin v Board of Educ., 485 US 1034). An exception arises where the employee alleges that the union breached its duty of fair representation, in which case the employee may litigate the contract dispute directly against the employer (see, Matter of Board of Educ. v Ambach, supra, at 508). Here, claimant alleges that the UUP breached its duty of fair representation by failing to defend him adequately at the arbitration held on the disciplinary grievance and by failing to pursue his eight other grievances to arbitration. We nevertheless conclude, however, that the claim was properly dismissed.

The claim is not viable to the extent that it is dependent upon on the allegation that the UUP breached its duty of fair representation by failing to defend claimant adequately at the arbitration held on the disciplinary grievance. The applicable Statute of Limitations with respect to the claim against defendant is four months from "the date the employee or former employee knew or should have known that the breach [of the union's duty of fair representation] has occurred, or within four months of the date the employee or former employee suffers actual harm, whichever is later" (CPLR 217 [2] [b]; see, Obot v New York State Dept. of Correctional Servs., 256 AD2d 1089, 1090). The arbitrator issued the determination finding claimant guilty of misconduct on February 1, 1991, and the UUP refused to commence a CPLR article 75 proceeding on claimant's behalf to challenge that determination. Thus, claimant knew by February 1991 of the UUP's alleged breach of the duty of fair representation but did not file this claim until April 3, 1995.

The claim also is not viable to the extent that claimant alleges that the UUP breached its duty of fair representation by failing to pursue the eight other...