Friday, July 29, 2011

Applying the statute of limitations


Applying the statute of limitations
Dolce v Bayport-Blue Point UFSD and others, 286 AD2d 316

Sometimes an individual will claim that his or her union had violated its duty of fair representation. The Dolce cases explores a number of issues, including a claim involving an alleged breach of the union's duty of fair representation that were intertwined with Statute of Limitation problems.

According to the Appellate Division, this lawsuit was brought by members Bayport-Blue Point Teachers Association against the Association and the School District. Dolce's compliant alleged a “breach of contract.” In reality, said the court, Dolce's complaint appeared to a violation of the union's “duty of fair representation” claim.

Sustaining State Supreme Court Justice Emerson dismissal of the complaint for a number of technical reasons, including being time-barred, the Appellate Division, said that while the plaintiffs describe their action as involving a breach of contract, “the gravamen [material part] of the complaint is that the defendant Bayport - Blue Point Teachers' Association, Inc., unfairly favored one group of teachers over the Dolce plaintiffs in negotiations with the [school district] over the terms of two successive retirement incentives, thereby causing the Dolce plaintiffs to lose salary and pension benefits.”

According to the Appellate Division, Dolce's claims against the Teachers' Association are, in essence, for breach of duty of fair representation. This means, said the court, the commencement of their action is governed by a four-month Statute of Limitations.

Its conclusion: the Supreme Court correctly determined that the Dolce's claims against the Teachers' Association were time-barred since their petition was filed after the four-month period had passed.

The court also said that “[a]s the claims against the [School District] are inextricably intertwined with the claims against the Teachers' Association for breach of its duty of fair representation, they are governed by the four-month Statute of Limitations ... and thus, are also time-barred.”

Another element in this case: the Dolce plaintiff’s failure to serve a timely notice of claim on the school district. Filing such a notice, said the court, was a condition precedent to the commencement of the action against the school district. Further, the Supreme Court did not have any authority to grant the Dolce plaintiffs permission to serve a late notice of claim.

Why didn't the court has such authority? Because, explained the Appellate Division, citing Sainato v Western Suffolk BOCES, 242 AD2d 301, Dolce ask the lower court for such permission after the Statute of Limitations for bring their law suit had already expired 

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