Opinion
Index No. 517862/2023
09-20-2024
Diane Imbesi, Plaintiff, v. The City of New York and the New York City Department of Education, Defendants
For Plaintiff Diane Imbesi: Karen M. Emma Esq. For Defendants: Amit Parab of New York City Law Department
Unpublished Opinion
For Plaintiff Diane Imbesi: Karen M. Emma Esq.
For Defendants: Amit Parab of New York City Law Department
Patria Frias-Colón, J.
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:
NYSCEF Doc #s 25-34 by Defendants
NYSCEF Doc # 38-47 by Plaintiff
Upon the foregoing cited papers and after oral argument on May 22, 2024, pursuant to CPLR §§ 3211(a)(2), 3211(a)(5), and 3211(a)(7), the Decision and Order on Defendants the City of New York ("City") and the New York City Department of Education's ("DOE") Motion to Dismiss the Plaintiff's amended complaint is GRANTED for the reasons stated herein.
BACKGROUND
Plaintiff, a teacher employed by the DOE, commenced this action on or about June 19, 2023 with the filing of her summons and complaint and subsequently filed an amended complaint on or about January 10, 2024 alleging: the DOE hired her as a substitute teacher in April 2007, at which time she possessed a permanent New York State teacher certificate and a Master's in Education (master's degree). On August 30, 2007, Plaintiff became a full-time teacher with the DOE. At all relevant times, Plaintiff was a member of the Unified Federation of Teachers union ("UFT" or "the union"). In order to determine Plaintiff's salary, the DOE used a pay scale chart ("Teacher Salary Schedule"), which factored in, among other things, the teacher's level of education and years of experience.
NYSCEF Doc # 1.
NYSCEF Doc # 18.
Id. at pp. 5-6.
Id.
Id. at p. 4; NYSCEF Doc #s 30-31.
NYSCEF Doc # 19 at pp. 2, 9-16.
In June 2019, Plaintiff realized that she had been underpaid for more than a decade. Specifically, she claimed to have been paid at the bachelor's degree rate instead of a master's degree rate. As a result, the UFT filed a grievance on Plaintiff's behalf seeking retroactive payment from the DOE for salary differential between September 26, 2007 through June 30, 2019. On April 15, 2021, the Division of Human Resources ("HR") reviewed Plaintiff's grievance and denied her application for a salary differential because she did not file "the required application...and failed to follow the well-established process." On June 2, 2021, after an investigation and reviewing Plaintiff's options, the UFT informed Plaintiff it would not appeal her grievance to arbitration. Plaintiff appealed UFT's decision and, by letter dated February 4, 2022, the union advised Plaintiff it would adhere to its prior decision not to pursue arbitration. Upon her second appeal, by letter dated July 1, 2022, the UFT again informed Plaintiff it would not take her grievance to arbitration. The UFT explained to Plaintiff "there [was] no evidence that [Plaintiff] filled out a timely application for a salary differential" and that "because fourteen years had passed before a salary grievance was filed, [the union] cannot overcome the argument that the grievance [was] untimely." Pursuant to CPLR § 3211, the City and the DOE now move to dismiss Plaintiff's complaint as against them.
NYSCEF Doc # 18 at pp. 2 & 6.
See NYSCEF Doc # 20.
NYSCEF Doc # 41 at p. 26.
NYSCEF Doc # 20; See NYSCEF Doc # 28 (Regulations promulgated by the Chancellor lay out the process and what materials the applicant needed to include).
NYSCEF Doc # 30.
NYSCEF Doc # 31.
NYSCEF Doc # 21.
Id. at p. 2.
NYSCEF Doc # 25.
DISCUSSION
As a preliminary matter, the Court does not consider Plaintiff's memorandum of law because it fails to comply with the Court's Uniform Rule § 202.8-b. The rule requires that a memorandum of law, among other documents, not exceed 7,000 words and contain a certification stating that counsel complied with this condition. Plaintiff's memorandum goes beyond a mere "technical defect" as it is over 13,000 words-close to double the maximum amount permitted-and contains no certification. The Court therefore will not consider plaintiff's memorandum of law in opposition to Defendants' motion.
NYSCEF Doc # 38.
See 22 NYCRR § 202.8-b [a] [i], [c]; see e.g. Valerio v Danice Stores, Inc., 2023 WL 6368466, *1, 2023 NY Misc. LEXIS 17994, *1, No. 801969/2022E (Sup Ct, Bronx County Aug. 2, 2023); Caputo v IESI NY Corp., 2022 WL 1620413, *3, No. 10594/2018 (Sup Ct, NY County May 23, 2022); Arntzen v City of New York, 2022 WL 861536, *3, No. 159502/2021 (Sup Ct, NY County Mar. 23, 2022); Miller v New York City Hous. Auth., 2022 NY Misc. LEXIS 37172, *1-2, No. 154027/2016 (Sup Ct, NY County Feb. 15, 2022); Tremada W. End Ave. LLC v New York State Div. of Hous. & Community Renewal, 2021 WL 5180140, *3, No. 161200/2020 (Sup Ct, NY County Nov. 8, 2021) ("respondent's opposition...exceeds 9,000 words, well beyond the 7,000 permissible").
Anuchina v Mar. Transp. Logistics, Inc., 216 A.D.3d 1126, 1127 (2d Dept. 2023).
See Macias v City of Yonkers, 65 A.D.3d 1298, 1299 (2d Dept. 2009) ("page limits on submissions are appropriate as is the rejection of papers that fail to comply with those limits") (internal citation omitted); Miller, 2022 NY Misc. LEXIS 37172 at *1-2.
Turning to the merits of the instant motion. The branch of Defendants' motion seeking dismissal of the action against the City on the ground that it is not a proper party is granted. The gravamen of the allegations set forth in the amended complaint pertain to Plaintiff's employment with the DOE and the DOE's actions in failing to award her retroactive payment for salary differential. The amended complaint does not allege any wrongdoing by the City independent of the DOE. Inasmuch as the City and the DOE are distinct legal entities, the City is entitled to have the amended complaint dismissed as against it.
NYSCEF Doc # 18 at pp. 5-10.
See Seifullah v City of New York, 161 A.D.3d 1206, 1207 (2d Dept. 2018); see e.g. Tanaysha T. v City of New York, 130 A.D.3d 916, 916-917 (2d Dept. 2015).
As for the DOE, they contend Plaintiff should have brought this matter as a CPLR Article 78 proceeding, and her failure to do so requires dismissal. It is well established that an Article 78 proceeding is the proper form for challenging a decision from an administrative body or officer. However, an Article 78 proceeding is not automatically the proper form when an administrative body is a defendant. "[W]here the language of the complaint asserts violations of a plaintiff's rights under a contract and the primary thrust of the allegations is in contract, a plenary action sounding in contract is the appropriate remedy." Thus, determining whether a litigant should file an Article 78 proceeding or a plenary action requires the Court to look at the gravamen of the complaint.
See New York City Health & Hosps. Corp. v McBarnette, 84 N.Y.2d 194, 201 (1994); 208 E. 30th St. Corp. v North Salem, 88 A.D.2d 281, 285 (2d Dept. 1982); see e.g. Matter of Edwards v NY City Dept. of Educ., 228 A.D.3d 935, 936 (2d Dept. 2024).
See e.g. Khass v New York Presbyt. Brooklyn Methodist Hosp., 213 A.D.3d 824, 827 (2d Dept. 2023).
Abiele Contr. v New York City Sch. Constr. Auth., 91 N.Y.2d 1, 7-8 (1997); see e.g. Matter of Giblin v Vil. of Johnson City, 75 A.D.3d 887, 888 (3d Dept. 2010).
See Abiele Contr., 91 N.Y.2d 1 at 7-8; see also Broderick v Board of Educ., 253 A.D.2d 836, 837 (2d Dept. 1998), lv denied 93 N.Y.2d 802 (1999).
Here, upon review of the amended complaint, Plaintiff should have brought this matter as an Article 78 proceeding. In this regard, although Plaintiff's amended complaint asserts various causes of action, the sum and substance of her claims is that the DOE did not adhere to the provisions of the employment contract by failing to pay her the salary of a teacher who possesses a master's degree for 13 years. At first glance, it may seem like "the language of the amended complaint assert[s] violations of Plaintiff's rights under a contract, [thus] the appropriate remedy is an action alleging breach of contract, not a proceeding pursuant to CPLR Article 78." However, and notwithstanding the labels of the claims asserted in the amended complaint, Plaintiff is not challenging the breach itself. Plaintiff is challenging HR's action in denying her application for a salary differential. Plaintiff's amended complaint explicitly alleges HR denied her application and her union declined to seek arbitration. Plaintiff also acknowledges the administrative nature of this case as her amended complaint states that she "exhausted her administrative remedies," and set forth all of the administrative steps taken by plaintiff in this regard. Thus, since the instant matter, in essence, challenges the administrative decision of the DOE, "the true nature of the case [is] that of a proceeding pursuant to CPLR Article 78."
See NYSCEF Doc # 18.
Khass v New York Presbyt. Brooklyn Methodist Hosp., 213 A.D.3d 824, 827 (2d Dept. 2023).
See NYSCEF Doc # 20.
See NYSCEF Doc # 18 at p. 4.
See Id. at p. 8.
Dolce-Richard v New York City Health & Hosps. Corp., 149 A.D.3d 903, 905 (2d Dept. 2017).
"Pursuant to CPLR § 103(c), courts have the discretion to convert a plenary action to a CPLR Article 78 proceeding." However, that would not benefit Plaintiff because her case could not proceed as she did not exhaust her administrative remedies. "As a general matter, an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies." The employee "must proceed...through the union" and "the union's decision to conclude the grievance process short of the final step allowed by contract or law is binding on the employee and precludes resort to additional remedies." "[O]nly when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer" and the employee must allege that the union did not adequately represent them.
Id. at 904.
Murray v Town of N. Castle, 203 A.D.3d 150, 172 (2d Dept. 2022) (internal quotation marks omitted).
Board of Educ. v Ambach, 70 N.Y.2d 501, 508 (1987), c ert denied 485 U.S. 1034 (1988).
Id. at 511; DiBenedetto v Ryan, 208 A.D.2d 796, 797 (2d Dept. 1994).
Id. at 508.
See Murray, 203 A.D.3d at 175.
Here, Defendants correctly argue Plaintiff was required to exhaust her administrative remedies before commencing this action. In this regard, Article 22 of the Collective Bargaining Agreement between the DOE and UFT, sets forth a grievance procedure to be followed and provides that, in the event the dispute is not resolved under said procedure, the union may submit the grievance dispute to arbitration for a decision. Represented by the UFT, Plaintiff filed a formal grievance with the DOE seeking retroactive payment for the salary differential, which was denied on April 15, 2021. On June 2, 2021, the UFT informed Plaintiff in writing that it would not pursue plaintiff's grievance to the final step of arbitration advising Plaintiff there was "no evidence that [she] filled out a timely application for a salary differential" and that her grievance was untimely. Consequently, the union's decision is "binding" and Plaintiff is precluded from resorting to additional remedies. Moreover, Plaintiff cannot overcome the union's decision as there is no allegation that the UFT failed to represent her fairly. Lastly, although Plaintiff filed a subsequent action against the union, the union is not a party in the present action and the Court lacks the authority to consolidate the cases sua sponte.
See Baroni-Harris v Jacobs, 76 A.D.2d 922, 923 (2d Dept. 1980).
See NYSCEF Doc # 32 at p. 174.
See NYSCEF Doc # 20.
NYSCEF Doc # 21 at p. 2.
Ambach, 70 N.Y.2d at 511.
See Murray, 203 A.D.3d at 175; The Court notes that even if the plaintiff had exhausted her administrative remedies, the action would still be dismissed because the statute of limitations had lapsed. A petitioner has four months to file an Article 78 proceeding after the agency's decision becomes final. "Where the underlying claims raised in an action could have been raised in a proceeding pursuant to CPLR Article 78," the four-month time limit applies. Global Revolution TV v Thames St Lofts, LLC, 140 A.D.3d 1016, 1016 (2d Dept. 2016) (internal quotation marks omitted). Here, the union advised the plaintiff that it would not pursue her grievance on July 1, 2022. See NYSCEF Doc No. 21 at p. 1. Plaintiff did not file her initial complaint until June 12, well beyond the four-month limitations period.
NYSCEF Doc # 44.
See Lazich v Vittoria & Parker, 196 A.D.2d 526, 530 (2d Dept. 1993), lv denied 82 N.Y.2d 656 (1993).
Given that Defendants are entitled to summary judgment on procedural grounds, the Court need not address the merits of Plaintiff's causes of action. All other issues not specifically addressed herein have been considered by the Court and found to be without merit. Therefore, Defendants' motion to dismiss Plaintiff's amended complaint is GRANTED and the case is dismissed with prejudice.
This constitutes the Decision and Order of the Court.