It's always distressing to read about a law office "mistake" which causes a Plaintiff to lose their case.
Betsy
W v City of New York
[*1] W v City of New York 2009 NY Slip Op 51606(U) [24 Misc 3d 1224(A)] Decided on July 21, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 21, 2009
Supreme Court, Kings County
P W, Plaintiff,
against
The City of New York, The New York City Department of Education and the United Federation of Teachers, Defendants.
11039/08
The plaintiff is represented by the Law Offices of Vivk Suri, by Abraham W, Esq., of counsel, the defendants the City of New York and the City Department of Education are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Danielle J. Barrett Esq. of counsel, the defendant the United Federation of Teachers is represented by the Law Offices of James R. Sander, Esq., by Yvonne M. Mariette, Esq., of counsel.
Robert J. Miller, J.
Upon the foregoing papers in this action by plaintiff PW (plaintiff) seeking damages for employment discrimination, defendants the City of New York and the New York City Department of Education (collectively, the City defendants) move, pursuant to CPLR 3012 (b), to dismiss plaintiff's complaint for failure to serve a timely complaint.[FN1] Defendant the United [*2]Federation of Teachers (the UFT) cross-moves to dismiss the summons with notice as against it.[FN2]
In September 2000, plaintiff became employed by the New York City Department of Education as a Special Education teacher. In September 2004, plaintiff, who is an Orthodox Jew, requested permission to take five days (from September 30 until October 8) as religious observation days for Succoth, a Jewish holiday. Plaintiff claims that on September 24, 2004, Leslie Pagliaro (the principal), who was plaintiff's principal at P.S. 180 and who had approved her prior request for religious observation of Succoth in 2003, initially denied her request because plaintiff was seven months pregnant and was planning to soon take maternity leave. According to the request form (which plaintiff claims was altered), the principal initially allowed plaintiff to use four days as religious observance leave time and three days as personal leave time. Plaintiff claims that in October 2004, she hand-delivered a grievance form to the UFT representative assigned to the school, grieving the denial of religious holiday leave, but nothing was ever done by the UFT in response to this.[FN3] Plaintiff did, however, take these days off from work, and it is undisputed that on November 12, 2004, the principal granted plaintiff's request for the use of religious observance leave time for the entire seven days. Plaintiff took maternity leave beginning on November 18, 2004.Following the birth of her child, plaintiff returned to work on February 1, 2005. Plaintiff alleges that on Friday, April 1, 2005, in the last period of the day, the principal directed her to prepare for an observation lesson for her third grade class on one day's notice for Monday, April 4, 2005. Plaintiff claims that in every prior year and for every other similarly situated teacher, two weeks notice was given prior to an observation lesson. Plaintiff asserts that she informed the principal that since she was Sabbath observant and the school building was closed on Sunday, the request was a de facto demand that she prepare the lesson on Saturday, in violation of her religious beliefs, but that the principal reiterated her demand that she be prepared for her observation lesson on Monday.
After school on that Friday, April 1, 2005, plaintiff contacted the UFT to request that it assist her in obtaining more time to prepare for her observation lesson, but it allegedly did nothing to assist her. Upon plaintiff's return to school on Monday, April 4, 2005, plaintiff alleges that when she was speaking with her classroom reading coach regarding appropriate material for her students for the upcoming observation lesson, the principal came into her classroom and degraded and humiliated her by shouting at her for working on her lesson during class time.
After this April 4, 2005 incident, plaintiff went home ill. Plaintiff claimed that she was vomiting, had strep throat, and was stressed out. Plaintiff then took a temporary sick leave.
On April 11, 2005, plaintiff filed a Step 1 grievance with the principal regarding allegations of harassment, discrimination, and unprofessional treatment that she alleged were "ongoing." On April 19, 2005, plaintiff requested a Step II grievance based on the ground that the principal had not convened a Step I grievance hearing. Beginning on May 2, 2005, plaintiff [*3]took child care leave and did not return to work for the rest of the school year.
On May 2, 2005, plaintiff additionally filed a complaint of alleged discrimination with the New York City Department of Education's Office of Equal Employment Opportunity (the OEO), requesting a formal investigation of her complaint of alleged discrimination based upon religion and pregnancy. Plaintiff set forth, as the nature of her complaint, that following the incident in which she was initially denied her religious days off, the principal had become hostile toward her and that she was no longer able to work under those conditions.
On May 4, 2005, plaintiff's April 11, 2005 request for a Step II grievance hearing was granted, and a Step II grievance hearing was held on May 20, 2005 before the Superintendent's Representative, Frank Capaldo. At this hearing, the UFT represented plaintiff and presented arguments on her behalf. The Superintendent's Representative rendered his findings and decision dated June 1, 2005, in which he found that: plaintiff's requests for time off for religious observance were all granted; it was within the prerogative of the principal to speak about time off to teachers as it related to the impact upon instruction; the cited instance of alleged harassment by the principal were unfounded; the principal made no exceptional requests of plaintiff or treated her differently from other teachers; and it was the duty and responsibility of the principal to engage plaintiff in conversation with respect to a deficiency or changes that had to be made. The Superintendent's Representative, in his June 1, 2005 decision, thus found that the UFT did not demonstrate that plaintiff "was treated differently from any other teacher or that she was harassed as a result of her religious beliefs," and, thus, denied the grievance.
On June 27, 2005, plaintiff filed another grievance with the principal based on a negative letter by the principal dated May 5, 2005, which was put in plaintiff's personnel file. On June 28, 2005, plaintiff received an unsatisfactory rating (a "U" rating) dated June 15, 2005 by the principal for the period of September 7, 2004 to June 28, 2005. The principal also recommended denial of certification of completion of probation.
On June 28, 2005, a Step I hearing was held by the principal and the UFT representative to discuss the June 27, 2008 grievance. By a letter dated June 30, 2005, the principal denied plaintiff's grievance on the basis that plaintiff failed to demonstrate that the letter in her file "was unfair or inaccurate."
On June 30, 2005, plaintiff filed another complaint with the OEO, alleging retaliation based on the May 5, 2005 letter in her personnel file and her "U" rating. Also on June 30, 2005, plaintiff appealed her "U" rating to the Office of Appeals & Reviews of the Department of Education.
In September 2005, plaintiff filed a Step II grievance concerning the May 5, 2005 letter that was put in her personnel file. Plaintiff asserts that a Step II grievance hearing was held some time afterwards, but a decision was never rendered on this matter.
On September 21, 2005, the OEO responded to plaintiff's complaints regarding discrimination based on her religion and pregnancy, and retaliation. The OEO, in its letter, stated that its review of this matter indicated that the principal had granted plaintiff's request for use of religious observance for the entire seven days, and that all of her leave requests regarding her pregnancy and child care matters had been granted. The OEO, in its letter, further stated that its review indicated that there was "no credible evidence presented that the principal's pedagogical and supervisory assessment of [her] job performance as unsatisfactory was a pretext for unlawful [*4]harassment, discrimination or retaliation." The OEO stated that "[b]ased on the foregoing, [it] has declined to assert further jurisdiction over this matter and has closed [plaintiff's] case file."
On April 24, 2006, a hearing was held before the Chancellor's Committee of the New York City Department of Education (the Chancellor's Committee) to review plaintiff's "U" rating for the school year ending June 2005. Plaintiff was represented at the hearing by her union advisor (provided by the UFT ) and both sides had the opportunity to present documentary and testimonial evidence. Based on the evidence presented by the parties at the April 24, 2006 hearing, the Chancellor's Committee found: that plaintiff had demonstrated weak teaching performance from September 2004 through April 4, 2005; that the administration spoke to her on many occasions discussing ways to improve her performance; that the principal decided to do a formal observation since plaintiff was taking a leave of absence on April 5, 2005; that the principal asked for a lesson plan on April 1, 2005 and plaintiff failed to provide one; that on April 4, 2005, the principal entered plaintiff's classroom and found her attending to herself, instead of to the students; that following the principal's visit, plaintiff became ill, went home, and did not return until September 2005; that plaintiff not only failed to improve her teaching ability by not providing a formal lesson plan, but was neglectful to the students to whom she was responsible; and nothing was demonstrated at the hearing to believe that the principal's judgment was in error.
On April 24, 2006, the Chancellor's Committee (by Michael Agona, the Committee Chairperson) recommended that the appeal be denied and the unsatisfactory rating sustained due to plaintiff's "failure to effectively teach her children." By a letter dated May 30, 2006, plaintiff wrote to the Department of Education's Office of Special Investigations (OSI) regarding allegations of "deceptions and fraud going on at P.S. 180 involving the . . . principal." These allegations reiterated plaintiff's claims regarding religious discrimination due to her request for religious observance for Succoth on September 30 to October 8, 2005, and regarding harassment and retaliation. Plaintiff additionally alleged, in that letter, that the May 5, 2005 letter in her file had indicated that it was irresponsible of her to take a child care leave, and that the principal also tampered with her tenure date.
On June 6, 2006, the Deputy Chancellor accepted the Chancellor's Committee's recommendation, and advised plaintiff that her appeal from the rating of unsatisfactory for the period ending June 2005 was denied and the rating was sustained "as a consequence of weak teaching performance and neglecting her students as evidenced by documentation and verbal testimony at the Review." By letters dated June 9, 2006 and June 23, 2006, plaintiff wrote to the Regional Superintendent, Michelle Fratti, and OSI Special Investigator, Christopher Dalton, respectively, regarding her May 30, 2006 complaint to OSI "to investigate the principal for fraud, tampering and verbal assault." The New York City Department of Education has not located a response to plaintiff's May 26, 2006 complaint.
On April 4, 2008, plaintiff filed this action. On August 4, 2008, the City defendants were served with plaintiff's summons with notice, dated April 4, 2008, which was unaccompanied by a complaint. On or about August 5, 2008, the summons with notice was served upon the UFT. Plaintiff's summons with notice states that this is an action for "employment discrimination, religious discrimination, gender discrimination, discrimination due to ethnicity, intentional infliction of emotional distress, loss of wages, and loss of benefits." [*5]
On August 8, 2008, the City defendants demanded, pursuant to CPLR 3012 (b), that plaintiff serve them with the complaint within 20 days after their demand. The 20-day period within which plaintiff was required to serve her complaint, thus, expired on August 28, 2008. On or about August 19, 2008, the UFT served, by regular mail, a notice of appearance and a demand for the complaint. Thus, plaintiff had until September 8, 2006 to serve a complaint upon the UFT.
On September 22, 2008, the City defendants served plaintiff with their motion to dismiss the complaint. On September 25, 2008, the UFT served plaintiff with its cross motion to dismiss.
On November 26, 2008, plaintiff served the City defendants with the complaint while in court. Plaintiff's complaint alleges a first cause of action for violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, as made actionable through 42 USC § 1983, due to defendants' alteration of the terms, conditions, and privileges of plaintiff's municipal employment "on account of her race and her reasonable complaints and opposition to such discrimination." Plaintiff's second cause of action alleges that "[b]y altering the terms, conditions, and privileges of plaintiff's municipal employment on account of her opposition to behavior which she reasonably believed to be racial discrimination and retaliatory, defendants have violated 42 USC [§] 1981." Plaintiff's third cause of action alleges that defendants "violated the Liberty Interest Clause of the Fourteenth Amendment, as made actionable under 42 USC [§] 1983," by "undertaking stigmatizing governmental actions which affected plaintiff's ability to be gainfully employed in her chosen profession." Plaintiff's fourth cause of action alleges that the City of New York "was careless and reckless in hiring, retaining and training . . . its employees" and that it failed to "ensure that its employees were not discriminating against other employees due to their religion or national origin."
Plaintiff's fifth cause of action alleges that the UFT was negligent in its representation of plaintiff, thereby allowing the discriminatory and retaliatory behavior to occur and continue to occur. Plaintiff's sixth cause of action alleges that the UFT breached its contract with plaintiff by giving ineffective representation to her. Plaintiff's complaint seeks an award of compensatory damages for lost financial opportunities, mental anguish, humiliation, and embarrassment, and an award of punitive damages and reasonable attorney's fees.
On November 26, 2008, the court adjourned this case until January 21, 2009 to give plaintiff time to oppose the motion and cross motion, and ordered that plaintiff's opposition to the motion to dismiss was due by December 24, 2008. However, plaintiff did not serve timely opposition papers.[FN4] The court, therefore, adjourned this case until March 11, 2009, at which time plaintiff served further opposition papers dated March 10, 2009. On March 11, 2009, the court adjourned this case until April 22, 2009, so that the City defendants could respond to plaintiff's March 10, 2009 affirmation, and provide an explanation of the administrative complaints filed by plaintiff concerning the allegations in the complaint and the outcome of [*6]these administrative complaints. Subsequent submissions were made to the court. Oral argument was held on June 10, 2009, at which all of the parties addressed the arguments raised by the City defendants and the UFT in their respective motion and cross motion.
Pursuant to CPLR 3012 (b), the court, upon motion, may dismiss the action if service of the complaint is not made within 20 days after service of the demand. In order to avoid the dismissal of an action for failure to timely serve a complaint after a demand for the complaint has been made, the plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action (see Trudeau v Ford, 60 AD3d 1186, 1186 [2009]; Fasano v J. C. Penney Corp., 59 AD3d 1102, 1102 [2009]; Kordasiewicz v BCC Prods., Inc., 26 AD3d 853, 854 [2006]; Grant v City of North Tonawander, 225 AD2d 1089, 1089 [1996]; Rosano v County of Nassau,208 AD2d 704, 705 [1994]; Brook v Inn at Saratoga Assn., 188 AD2d 921, 921 [1992]).
In attempting to proffer an excuse for the delay, plaintiff's attorney, Abraham Weisel, Esq., asserts that in between the time that he served the summons with notice and defendants served their demand for a complaint, his law firm moved offices from 485 Seventh Avenue in midtown Manhattan (the address listed on the summons with notice) to 401 Broadway in downtown Manhattan. Mr. Weisel , Esq. states that due to this moving of offices, plaintiff's file was unavailable as it was in storage. Mr. Weisel, Esq. also states that due to the delay by the United States Postal Service in forwarding the mail from the previous address to the new address, mail was lost or misplaced. Mr. Weisel, Esq. asserts that, therefore, plaintiff was unaware that the complaint had to be served on defendants. Mr. Weisel, Esq. further asserts that defendants have not been prejudiced by the nearly three-month delay in the service of the complaint upon them. Mr. Weisel, Esq. contends that this court should exercise its discretion, pursuant to CPLR 2005, to excuse plaintiff's delay, which, he states, resulted from law office failure, and compel the acceptance of plaintiff's untimely complaint pursuant to CPLR 3012 (d).
Mr. Weisel, Esq., however, does not proffer the dates of this alleged relocation. Mr. Weisel, Esq. also does not indicate why he failed to serve defendants with a notice of the change in his address. Nor does Mr. Weisel, Esq. specify what mail was lost or misplaced. It is additionally noted that there is no requisite that prejudice must be shown before a motion to dismiss may be granted pursuant to CPLR 3012 (b) (see Verre v Rosas, 47 NY2d 795, 796 [1979]; Mathews v Harford, 63 AD2d 759, 759 [1978]).
Furthermore, the UFT asserts that when it became aware that plaintiff's counsel had moved its office, it served the demand for complaint previously served on plaintiff's counsel at the new address on September 4, 2008. Pursuant to CPLR 3012 (b), this gave plaintiff until September 24, 2008 to serve the complaint. However, as noted above, plaintiff did not serve her complaint until November 26, 2008, nearly two months later (see Pellerin v Groveville Corp., 34 AD2d 650, 650 [1970]).
In addition, plaintiff's attorney contacted the City defendants' counsel in October 2008, requesting that the City defendants consent to an adjournment of the pending motion from October 21, 2008 to November 7, 2008, and, in fact, entered into a stipulation with the City defendants and the UFT, dated October 17, 2008, adjourning the motion on consent. Such stipulation, thus, indicates plaintiff's attorney's awareness of the City defendants' motion to dismiss for failure to serve a timely complaint and plaintiff's need to serve a complaint. [*7]However, plaintiff still did not serve the City defendants with her complaint until November 26, 2008, more than 20 days from the October 21, 2008 date of the stipulation. The court, thus, does not find that plaintiff has provided an adequate excuse to justify her delay in the service of her complaint (see Verre, 47 NY2d at 796; Grant, 225 AD2d at 1089; Rosano, 208 AD2d at 705; Pellerin, 34 AD2d at 650).
Moreover, as previously noted, in order to defeat a CPLR 3012 (b) motion to dismiss, a plaintiff must demonstrate a meritorious cause of action. Thus, a party opposing a CPLR 3012 (b) motion to dismiss by reason of law office failure must "submit an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case" (Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905 [1985]; see also Fasano, 59 AD3d at 1102; Chmielnik v Rosenberg, 269 AD2d 555, 555 [2000]; Rosano, 208 AD2d at 705).
Plaintiff, in her affidavit of merit, incorporates by reference all of the allegations in her verified complaint and states that paragraph 12 of the verified complaint makes it clear that defendants, their agents, and their employees consistently discriminated against her due to her religious beliefs, her status as a pregnant woman, and her Jewish background. Paragraph 12 of plaintiff's complaint describes the principal's initial denial of time off for Succoth, how she had to prepare for an observation lesson on one day's notice, the placement of a negative letter in her file, the "U" rating received by her, and the principal's "sabotage of [her] vested' tenure." Plaintiff also alleges that the UFT did nothing to assist her or to protect her rights under the collective bargaining agreement, and that it ignored her request for assistance.
Based upon the above allegations, plaintiff's first cause of action purports to allege a claim under 42 USC §1983, asserting that defendants violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by altering the terms, conditions, and privileges of her municipal employment "on account of her race and her reasonable complaints and opposition to such discrimination." However, in order to state a cognizable 42 USC §1983 claim against a municipality, a plaintiff must allege that he or she was deprived of a federally protected right by someone acting under the color of state law, who acted pursuant to an official policy, custom, or practice of the municipal defendant, and that he or she was injured as a result of that conduct (see Monell v New York City Dept. of Soc. Serv. of City of New York, 436 US 658, 690-691 [1978]).
Here, plaintiff's complaint fails to allege that the complained of unconstitutional acts occurred pursuant to an official policy endorsed by the municipality or governmental custom (see id.; Vippolis v Village of Haverstraw, 768 F2d 40, 44 [2d Cir 1985], cert denied 480 US 916 [1987]; Zanghi v Incorporated Village of Old Brookville, 752 F2d 42, 45 [2d Cir 1985]; Moray v City of Yonkers, 924 F Supp 8, 12 [SD NY 1996]; Montano v City of Watervilet, 47 AD3d 1106, 1111 [2008]; Fike v Town of Webster, 11 AD3d 888, 889 [2004]). Thus, plaintiff's first cause of action fails to state a viable cause of action.
Plaintiff's second cause of action (as noted above) alleges that defendants violated 42 USC § 1981 "[b]y altering the terms, conditions, and privileges of [her] municipal employment on account of her opposition to behavior which she reasonably believed to be racial discrimination and retaliatory." 42 USC § 1981, however, is a statute which generallly sets forth that all persons have equal rights under the law to enforce contracts or to the full and equal benefit of all laws and proceedings. Plaintiff's second cause of action, thus, fails to state any [*8]cognizable claim.
Plaintiff's third cause of action (as previously stated) alleges that the City defendants have violated the Liberty Interest Clause of the Fourteenth Amendment, as made actionable under 42 USC § 1983, by undertaking stigmatizing governmental actions which adversely affected her ability to be gainfully employed in her chosen profession. However, plaintiff cannot show that any statements made by the principal were sufficiently stigmatizing so as to implicate a liberty interest in her professional reputation as a teacher (see Donato v Plainview-Old Bethpage Cent. School Dist., 96 F3d 623, 631 [2d Cir 1996], cert denied 519 US 1150 [1997]; Pinder v City of New York, 49 AD3d 280, 281 [2008]).
It is also noted that plaintiff was not terminated from her employment with the New York City Department of Education, and her allegations with respect to tenure are unclear and vague and do not appear to be substantiated by the record. In addition, plaintiff cannot show any deprivation of a liberty interest occurred without due process of law since she could have brought a CPLR article 78 proceeding to challenge the alleged wrongful administrative action (see Shakur v Selsky, 391 F3d 106, 111 [2d Cir 2004]; Alfaro Motors, Inc. v Ward, 814 F2d 883, 888 [2d Cir 1987]; Eastway Constr. Corp. v City of New York, 762 F2d 243, 250 [2d Cir 1985]; Pinder, 49 AD3d at 281; Matter of Hall v Town of Henderson, 17 AD3d 981, 982 [2005]; Fike, 11 AD3d at 889-890; Montano v City of Watervilet, 2006 NY Slip Op 52669 [U], *5, affd 47 AD3d 1106 [2008]). Consequently, plaintiff's third cause of action does not state a cognizable claim.
To the extent that plaintiff's fourth cause of action can be construed as asserting State Law or City Law discrimination claims (i.e., Executive Law § 296; Administrative Codeof City of NY § 8-107), it cannot be maintained for failure to comply with the notice of claim requirement of Education Law § 3813 (1). Pursuant to Education Law § 3813 (1), no action may be maintained against a school district or its officers unless: the plaintiff has filed a written verified notice of claim with that school district within three months from the accrual of the claim; the plaintiff has pleaded that the notice has been served; the plaintiff has allowed 30 days to elapse after the notice was filed before filing a complaint; and the plaintiff has shown that in that time period the defendant has either neglected or refused to satisfy the claim (see Gear v Department of Educ., 2009 WL 484424, *5 [SD NY 2009]).
"There is no question that employment discrimination is included within the umbrella of [Education Law] § 3813" (Falchenberg v New York City Dept. of Educ., 375 F Supp 2d 344, 350 [SD NY 2005]). "The Legislature has spoken unequivocally that no action or proceeding may be prosecuted or maintained against any school district or board of education unless a notice of claim has been presented to the governing body'" (Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539, 549 [1983], quotingEducation Law § 3813 [1]; Collier v City of New York, 2009 WL 464937, *7 [SD NY 2009]; Falchenberg, 375 F Supp 2d at 350; Pinder, 49 AD3d at 281; Francis v Elmsford School Dist., 2004 WL 1769980, *4 [SD NY 2004]; Wynn v Gates Chili Cent. School Dist., 138 AD3d 1352, 1352 [2007]). Failure to file a notice of claim against a [*9]governmental subdivision for acts arising out of state civil rights laws is fatal unless the plaintiff is seeking to vindicate a public interest, as opposed to a private right (see Biggers v Brookhaven Comsewogue Union Free School Dist., 127 F Supp 2d 452, 455 [SD NY 2001]; Sangermano v Board of Coop. Educ. Servs. of Nassau, 290 AD2d 498, 498 [2002]; Doyle v Board of Educ. of Deer Park Union Free School Dist., 230 AD2d 820, 820 [1996]). Thus, where the plaintiff seeks to recover for a private interest, the failure to file an appropriate notice of claim routinely results in dismissal at the pleadings stage of an action (see Collier, 2009 WL 464937, *7).
Here, plaintiff seeks to recover monetary damages consisting of compensatory damages and punitive damages for her own alleged emotional and financial losses, which are private interests (see Falchenberg, 375 F Supp 2d at 350; Biggers, 127 F Supp 2d at 455). The filing of a notice of claim was, therefore, a condition precedent to the commencement of this action (see Wynn, 38AD3dat 1352; Sangermano, 290 AD2d at 498; Doyle, 230 AD2d at 820). Plaintiff's complaint, however, makes no reference to a notice of claim. Plaintiff has not pleaded that she served a notice of claim nor did she actually file one (see Gear, 2009 WL 484424, *5; Santiago v Newburgh Enlarged City School Dist., 434 F Supp 2d 193, 196 [SD NY 2006]). While plaintiff has filed administrative complaints, they are not substitutes for a notice of claim (see Santiago, 434 F Supp 2d at 196 n 2; Parochial Bus Sys., 60 NY2d at 548).
To the extent that plaintiff's fourth cause of action alleges a claim of negligent hiring, plaintiff has similarly failed to comply with the notice of claim requirements of Education Law § 3813 (1) and (2). Thus, plaintiff's fourth cause of action cannot be properly maintained. Consequently, plaintiff has failed to demonstrate that she has a meritorious complaint as against the City defendants (see Fasano, 59 AD3d at 1103).
With respect to plaintiff's fifth and sixth causes of action (which are asserted as against the UFT), it is noted that the applicable Statute of Limitations for a breach of the duty of fair representation claim is set forth in CPLR 217 (2)(a), which provides that an action to recover damages for such a claim against a labor union must be commenced within four months of the date the employee knew or should have known that the breach occurred, or within four months of the date the employee suffers actual harm, whichever is later (see Blumberg v Patchogue-Medford Union Free School Dist., 18 AD3d 486, 488 [2005]).
The breach of the duty of fair representation claim asserted in plaintiff's complaint alleges that the UFT was negligent in its representation of her "during all pertinent facets of the discriminatory and retaliatory behavior" and that it breached its contract with her by proffering ineffective representation "during all times [its] representation was warranted" (see generally Civil Service Law § 209-a [2][c]). Specifically, plaintiff's complaint alleges that the UFT failed to assist her by ignoring her grievance form in relation to the September 2004 request for time off for religious observance, and in failing to assist her with respect to the April 4, 2005 incident. Thus, plaintiff alleges that these [*10]failures by the UFT to assist her occurred in 2004 and 2005.
Moreover, while it is noted that the UFT did, in fact, proceed with grievances on plaintiff's behalf and represented plaintiff at the Step II grievance hearing on May 20, 2005, the Step I hearing on June 28, 2005, and the April 24, 2006 hearing before the Chancellor's Committee, plaintiff's claim against the UFT accrued, at the latest, when she received the June 6, 2006 letter from the Deputy Chancellor advising her that her appeal from the U" rating had been denied. Thus, plaintiff's action as against the UFT, which was filed on April 4, 2008, is time-barred by the applicable four-month Statute of Limitations of CPLR 217 (2)(a).
While it is also noted that plaintiff's complaint asserts that in June 2006, plaintiff was informed by the UFT representative that all the adverse actions taken by defendants would be remedied, plaintiff has not asserted any reasonable basis for believing any specific action continued to be taken by the UFT within four months of the commencement of this action on April 4, 2008 (over two years after June 2006) (see Walsh v Torres-Lynch, 266 AD2d 817, 818 [1999]). Although plaintiff also states that the UFT chapter leader informed her in March 2008 that she remained on the list of untenured teachers, she does not specify any action which she believed was being taken or not taken by the UFT with respect to her tenure claim nor does she actually allege anything specific regarding a tenure claim.
In any event, in order to establish a breach of the duty of fair representation, it is necessary to show that the union's conduct was arbitrary, discriminatory, or taken in bad faith (see Smith v Sipe, 67 NY2d 928, 929 [1986]; Ponticello v County of Suffolk, 225 AD2d 751, 752 [1996]; Hoerger v Board of Educ. of Great Neck Union Free School Dist., 215 AD2d 728, 729 [1995]; Ahrens v New York State Pub. Empls. Fedn., AFL-CIO, 203 AD2d 796, 798 [1994]; Schmitt v Hicksville UFSD No. 17, 200 AD2d 661, 662-663 [1994]; Altmari v Parker, 189 AD2d 982, 983-984 [1993]). The mere refusal by a union to proceed with the grievance or to handle the grievance in a particular way does not itself establish a breach of the duty of fair representation (see Matter of Sapadin v Board of Educ. of City of NY, 246 AD2d 359, 359 [1998]; Symanski v East Rampo Cent. School Dist., 117 AD2d 18, 21 [1986]; Albino v City of New York, 80 AD2d 261, 270 [1981]). Rather, "there must be a showing that the activity, or lack thereof, which formed the basis of the charges against the union was deliberately invidious, arbitrary or founded in bad faith" (Matter of Civil Serv. Empls. Assn. v Public Empl. Relations Bd., 132 AD2d 430, 432 [1987], affd 73 NY2d 796 [1988]; see also Matter of Sapadin, 246 AD2d at 360).
Moreover, a union is under no duty to carry every grievance to the highest level or to pursue it to arbitration or to present it in a particular way, and, thus, the failure to do so does not, in itself, constitute a breach of its duty of fair representation (see Ponticello, 252 AD2d at 752; Ahrens, 203 AD2d at 798; Kleinmann v Bach, 195 AD2d 736, 738 [1993]; Matter of Garvin v New York State Pub. Empl. Relations Bd., 168 AD2d 446, 447 [1990]). Thus, plaintiff's fifth and sixth causes of action fail to state a viable claim as [*11]against the UFT. Consequently, plaintiff has not demonstrated that she has a meritorious complaint as against the UFT (see Fasano, 59 AD3d at 1103).
Accordingly, the City defendants' motion and the UFT's cross motion to dismiss plaintiff's complaint as against them, are granted.
This constitutes the decision, order, and judgment of the court.
E N T E R,
__________________
J. S. C.
Robert J. Miller Footnotes
Footnote 1:The City defendants, in their memorandum of law, also seek to dismiss plaintiff's complaint based upon the grounds that plaintiff has failed to comply with the notice of claim requirement of Education Law § 3813 (1), that plaintiff's negligence claim is barred by the applicable Statute of Limitations, that plaintiff fails to state a cognizable 42 USC § 1983 claim, and that plaintiff failed to file a timely CPLR article 78 proceeding to challenge the decisions that were the subject of this action.
Footnote 2:Since, after the UFT served its notice of cross motion, plaintiff served the UFT with her complaint on November 26, 2008, the UFT seeks, by its cross motion, to dismiss plaintiff's complaint as untimely served and based upon its failure to state a viable cause of action against it.
Footnote 3: Plaintiff has not submitted a copy of the grievance form to the court.
Footnote 4:Plaintiff's opposition papers are dated December 26, 2008, two days after the expiration of plaintiff's time to submit her opposition papers. Additionally, the City defendants and the UFT did not receive them until January 13, 2009, three weeks after they were due for filing with the court. Plaintiff's opposition papers provide no explanation for this untimely service.
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