Opinion
5314 Index 162461/14
12-28-2017
Pauline OKPO, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant, District Council 37, et al., Defendants–Respondents.
Law Office of Vincent I. Eke–Nweke, P.C., Brooklyn (Vincent I. Eke–Nweke of counsel), for appellant. Kreisberg & Maitland, LLP, New York (Jeffrey L. Kreisberg of counsel), for respondents.
Law Office of Vincent I. Eke–Nweke, P.C., Brooklyn (Vincent I. Eke–Nweke of counsel), for appellant.
Kreisberg & Maitland, LLP, New York (Jeffrey L. Kreisberg of counsel), for respondents.
Friedman, J.P., Gische, Webber, Kahn, Singh, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about December 6, 2016, which denied plaintiff's motion for partial summary judgment on the issue of liability, and granted defendants-respondents' (the Union) cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
As a probationary employee, plaintiff's termination was not the basis for a "grievance" under the governing collective bargaining agreement (CBA). As such, the Union owed her no duty of fair representation (see Portlette v. Metropolitan Tr. Auth., 25 A.D.3d 389, 391, 808 N.Y.S.2d 652 [1st Dept. 2006] ).
Even assuming that the Union owed her a duty here, it would nonetheless have had no duty to initiate a CPLR article 78 proceeding on her behalf. The duty of fair representation is rooted in the bargaining agent's exclusive statutory authority to pursue grievances on behalf of covered employees under the CBA (see Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v. City of New York, 64 N.Y.2d 188, 196, 485 N.Y.S.2d 227, 474 N.E.2d 587 [1984] ; Butler v. McCarty, 191 Misc.2d 318, 324, 740 N.Y.S.2d 801 [Sup. Ct. Madison County 2002], aff'd 306 A.D.2d 607, 762 N.Y.S.2d 129 [3d Dept. 2003] ). As a probationary employee, however, plaintiff could have challenged her termination herself in an article 78 proceeding (see e.g. Matter of Castro v. Schriro, 140 A.D.3d 644, 644, 34 N.Y.S.3d 44 [1st Dept. 2016],aff'd 29 N.Y.3d 1005, 54 N.Y.S.3d 641, 77 N.E.3d 359 [2017] ). The nature and purpose of the duty of fair representation—representation in collective bargaining grievances—thus does not support expansion of the duty to cover article 78 proceedings.