Smith v. Sipe ( 1985 )

Mikoll, J.

Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered December 30,1983 in Ulster County, which denied defendant’s motion to dismiss the complaint for failure to state a cause of action.

Plaintiff, a former State correction officer, seeks to recover damages allegedly caused by the breach of the duty of the Security Unit Employees Council 82, AFSCME, AFL-CIO (the union) to fairly represent him. The union is authorized as the exclusive collective bargaining agent for plaintiff and State correctional employees.

In February 1981, plaintiff, in the presence of William Lothrop, the union’s then president, was informed by the Superintendent of Eastern Correctional Facility that he would be suspended pending the outcome of a criminal investigation concerning stolen property. Lothrop advised plaintiff to avoid suspension by resigning. The complaint in the instant action alleges that this advice was given “with the understanding that plaintiff could get his job back at anytime within one year from the date of his resignation, so long as the investigation” did not result in a criminal conviction. Plaintiff was told that, if he resigned, “he [wjould obtain accumulated vacation pay and other benefits”. Following this advice, plaintiff immediately resigned. Subsequently, the criminal investigation was concluded and no charges were brought against plaintiff.

The complaint also states that within one year of his resignation, plaintiff applied for reemployment as a correction officer, that the application was denied and that he has since been unsuccessful in seeking reemployment. The union moved for an order dismissing the complaint on the ground that it failed to state a cause of action (CPLR 3211 [a] [7]). Special Term denied the motion and this appeal followed.

The complaint alleges sufficient facts to support a claim that the union breached its duty of fair representation. Special Term’s order denying defendant’s motion to dismiss the complaint for failure to state a cause of action should therefore be affirmed.

The complaint sets forth facts establishing that plaintiff’s alleged injury arose out of the union’s role as the exclusive bargaining representative of the collective bargaining unit of which plaintiff was a member. New York case law recognizes the existence of a duty of fair representation on the part of public sector unions predicated on their role as exclusive bargaining representatives similar to that arising under Federal law (Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188, 196). This duty is breached “ ‘only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith’ ” (supra, quoting Vaca v Sipes, 386 US 171, 190). Whether that duty has been breached in a particular case is “essentially a factual determination” (supra, p 196). Moreover, on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), as here, the complaint is to be “liberally construed” (McKnight v Joyce, 79 AD2d 1066, 1067) and plaintiff is to be “given the benefit of every possible favorable inference” (Rovello v Orofino Realty Co., 40 NY2d 633, 634). In light of the foregoing, the complaint and plaintiff’s motion papers can be construed as alleging more than mere negligence and, therefore, Special Term’s conclusion that plaintiff’s allegations were sufficient to defeat defendant’s motion to dismiss the complaint should not be disturbed.

Order affirmed, with costs. Kane, Casey, Mikoll and Harvey, JJ., concur; Mahoney, P. J. dissents and votes to reverse in the following memorandum.