Morton v Mulgrew: Dianna Morton Once Again Loses a Right to Wage Increases Between October 2009 and June 2014 Because She Resigned Between Both Dates

The First Department has decided to deny Dianna Morton and other plaintiffs their lawsuit against the UFT after the UFT ratified a contract that provided for wage increases retroactive to the October 31, 2009 expiration of the preceding agreement both for members employed on June 3, 2014 and for members who had retired after October 31, 2009, but not for former members, such as plaintiffs, who had resigned from their employment between those two dates. 

This is unfair, arbitrary and capricious. Maybe the Plaintiffs will take this issue to the Court of Appeals, and get some justice there.

I hope so!

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Morton v Mulgrew

2016 NY Slip Op 07270

Decided on November 3, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 3, 2016 
Renwick, J.P., Feinman, Gische, Kapnick, JJ.

2134 6522111/14 

[*1]Dianna Morton, Plaintiff, Grant Tedaldi, et al., Plaintiffs-Appellants, —

v

Michael Mulgrew, etc., Defendant-Respondent.

Salem & Shimko, Brooklyn (Daniel Shimko of counsel), for appellants.

Stroock & Stroock & Lavan LLP, New York (Dina Kolker of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered July 23, 2015, which, to the extent appealed from, granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.

The complaint alleges that New York United Federation of Teachers, Local 2, AFT, AFL-CIO, breached the duty of fair representation to plaintiffs by ratifying, on June 3, 2014, a collective bargaining agreement that provided for wage increases retroactive to the October 31, 2009 expiration of the preceding agreement both for members employed on June 3, 2014 and for members who had retired after October 31, 2009, but not for former members, such as plaintiffs, who had resigned from their employment between those two dates.

Cognizant of the obstacle to this suit presented by the Martin rule, which "limit[s] such suits . . . to cases where the individual liability of every single member can be alleged and proven" (Martin v Curran, 303 NY 276, 282 [1951]; General Associations Law § 13), plaintiffs argue that the rule was abrogated by the enactment of the Taylor Law in 1967 (Civil Service Law § 200 et seq.), or by its 1990 amendment. This argument is unavailing in light of the recent decision of the Court of Appeals upholding the Martin rule (even as it questioned the rule's "continued utility or wisdom") (Palladino v CNY Centro, Inc., 23 NY3d 140, 150 [2014]).

Given the foregoing, we need not reach plaintiffs' remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2016

CLERK