Opinion
2018–04925 Index No. 59782/17
08-18-2021
Matthew CALDARA, etc., et al., appellants, v. COUNTY OF WESTCHESTER, et al., respondents.
Roth Law Group, PLLC, White Plains, N.Y. (Warren J. Roth of counsel), for appellants Matthew Caldara, Mary Autorino, Richard Bortnowsky, Dennis D'Alessio, Michael DeVito, Thomas Diana, Joseph Dupuy, Raymond Fennell, Matthew Fortino, James Harrison, Michael Henneberry, Thomas Jackson, Thomas Miller, Peter Occhipinti, Thomas O'Connor, Francisco Ortiz, Robert Outhouse, Denise Potenza, Roseanne Riguzzi, Linda Roche, Robert Roche, Rudolph Rosa, Raymond Tkacz, Dolph Tutoni, David White, and Ronald Wolken. James Clarke, Hopewell Junction, NY, appellant pro se. John M. Nonna, County Attorney, White Plains, N.Y. (Linda Trentacoste and Justin R. Adin of counsel), for respondents.
Roth Law Group, PLLC, White Plains, N.Y. (Warren J. Roth of counsel), for appellants Matthew Caldara, Mary Autorino, Richard Bortnowsky, Dennis D'Alessio, Michael DeVito, Thomas Diana, Joseph Dupuy, Raymond Fennell, Matthew Fortino, James Harrison, Michael Henneberry, Thomas Jackson, Thomas Miller, Peter Occhipinti, Thomas O'Connor, Francisco Ortiz, Robert Outhouse, Denise Potenza, Roseanne Riguzzi, Linda Roche, Robert Roche, Rudolph Rosa, Raymond Tkacz, Dolph Tutoni, David White, and Ronald Wolken.
James Clarke, Hopewell Junction, NY, appellant pro se.
John M. Nonna, County Attorney, White Plains, N.Y. (Linda Trentacoste and Justin R. Adin of counsel), for respondents.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for breach of contract, the plaintiffs appeal from an amended order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated April 9, 2018. The amended order granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint and denied the plaintiffs’ cross motion pursuant to CPLR 3025(b) for leave to amend the complaint.
ORDERED that the amended order is affirmed, with costs.
The plaintiffs commenced this action to recover damages for breach of a collective bargaining agreement (hereinafter CBA) based on the defendants’ failure to pay certain benefits to the individual plaintiffs. The plaintiffs contend that any police officer who has been receiving disability benefits pursuant to General Municipal Law § 207–c and who then receives a disability retirement pension upon the County of Westchester's application is entitled, upon retirement, to benefits equivalent to those provided by the Workers’ Compensation Law for loss of earning capacity due to permanent partial or total disability. The defendants contend, inter alia, that the CBA is silent as to such awards, and, as such, police officers are not entitled, upon retirement, to benefits equivalent to those provided by the Workers’ Compensation Law for loss of earning capacity due to permanent partial or total disability. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint, and the plaintiffs cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. The Supreme Court granted the motion and denied the cross motion, and the plaintiffs appeal.
"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" ( Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153 ; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ).
Here, the plaintiffs have failed to identify a specific provision in the CBA that requires the defendants to pay benefits equivalent to those provided by the Workers’ Compensation Law for loss of earning capacity due to permanent partial or total disability (see Westchester County Corr. Superior Officers Assn. v. County of Westchester, 132 A.D.3d 663, 17 N.Y.S.3d 309 ; Westchester County Corr. Officers Benevolent Assn., Inc. v. County of Westchester, 99 A.D.3d 998, 953 N.Y.S.2d 623 ; see also Westchester County Corr. Officers Benevolent Assn., Inc. v. County of Westchester, 99 A.D.3d 1000, 952 N.Y.S.2d 461 ; cf. Trump on Ocean, LLC v. State of New York, 79 A.D.3d 1325, 913 N.Y.S.2d 792 ). Therefore, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
"Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit" ( Maldonado v. Newport Gardens, Inc., 91 A.D.3d 731, 731–732, 937 N.Y.S.2d 260 ). "No evidentiary showing of merit is required under CPLR 3025(b)" ( Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238 ). "The court need only determine whether the proposed amendment is ‘palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit" ( id. ). Here, the CBA is silent as to retirement benefits (see Westchester County Corr. Superior Officers Assn. v. County of Westchester, 132 A.D.3d 663, 17 N.Y.S.3d 309 ; Westchester County Corr. Officers Benevolent Assn., Inc. v. County of Westchester, 99 A.D.3d 998, 953 N.Y.S.2d 623 ). Therefore, contrary to the plaintiffs’ contention, based upon the unambiguous terms of the CBA, there is no provision for retirement benefits equivalent to those provided by the Workers’ Compensation Law for loss of earning capacity due to permanent partial or total disability. Accordingly, the Supreme Court properly denied the plaintiffs’ cross motion pursuant to CPLR 3025(b) for leave to amend the complaint.
DILLON, J.P., CONNOLLY, IANNACCI and CHRISTOPHER, JJ., concur.