Botkin v. United Federation of Teachers ( 1990 )

Order, Supreme Court, New York County (David B. Saxe, J.), entered April 16, 1989, which dismissed the complaint, unanimously affirmed, without costs.

Plaintiff, a former school secretary employed by the New York City Board of Education, was terminated after a hearing in which she was represented by an attorney provided her by defendant collective bargaining representative. This administrative determination was confirmed by the Appellate Division, Second Department. (Matter of Botkin v Board of Educ., 122 AD2d 136, lv denied 70 NY2d 609.) A grievance filed by plaintiff with the Grievance Committee of this court concerning her representation at the hearing was dismissed after investigation.

Plaintiff thereafter commenced this action seeking monetary damages against defendant for breach of its duty of fair representation. Defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) was properly granted.

Where, as here, the merits of the underlying grievance have been fully litigated resulting in a determination unfavorable to plaintiff, plaintiff is barred by the doctrine of res judicata from bringing an action against the union (Sinicropi v New York State Pub. Employment Relations Bd., 125 AD2d 386, Iv denied 70 NY2d 606). Concur—Kupferman, J. P., Carro, Ellerin, Wallach and Smith, JJ.