Friday, October 21, 2011

To sue a union that is an unincorporated association, the complaint must allege that each member of the union authorized or ratified the conduct giving rise to the alleged misconduct

To sue a union that is an unincorporated association, the complaint must allege that each member of the union authorized or ratified the conduct giving rise to the alleged misconduct
Lahendro v New York State United Teachers Assn.. 2011 NY Slip Op 07343, Appellate Division, Third Department

The Brushton-Moira Central School District served disciplinary charges against a longtime tenured educator, Michael F. Lahendro, seeking his termination. Contending that the allegations set out in the charges were false, Lahendro met with an attorney and a labor relations specialist from New York State United Teachers Association and executed a demand for a disciplinary hearing in accordance with Education Law §3020-a [2][c].

NYSUT’s representatives assumed responsibility to file the demand with the district. but it was filed one day late and the district refused to accept it.

Lahendro did not seek permission to file a late demand but instead entered into a settlement agreement with the school district in which, among other things, he agreed to retire. Lahendro and his wife then commenced a lawsuit against NYSUT alleging it had breached its the duty of fair representation and negligence [Lahendro I].

NYSUT filed a motion to dismiss the action, which was denied by Supreme Court and it appealed the lower court’s ruling.

The Appellate Division first considered NYSUT’s argument that Lahendro failed to properly plead a breach of the duty of fair representation because where, as here, the union is an unincorporated association, the complaint must allege that each member of the union authorized or ratified the conduct giving rise to the breach.

Noting that the Court of Appeals held in Martin v Curran, 303 NY 276, that a voluntary unincorporated association "has no existence independent of its members" and that "for better or worse, wisely or otherwise, the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven" it vacated the lower courts ruling.

Although certain exceptions have been carved out from this general rule, the court said that one commentator has observed that, “although a claim of breach of the duty of fair representation may be brought either in court or before an appropriate agency (such as the Public Employment Relations Board), the reality in light of Martin is that most such claims must be brought before an agency to survive early dismissal, citing Rubenstein, Union Immunity From Suit in New York, 2 NYU Journal of Law & Business 641.

Finding that the Lahendros had alleged NYSUT and the Brushton-Moira Teachers Association were unincorporated associations but had not alleged, and acknowledged that they could prove, that all of the individual members of these defendants authorized or ratified the complained of conduct, the Appellate Division ruled that NYSUT motion to dismiss should have been granted.

As to the Lahendro’s second cause of action, the Court held that they have "no cause of action against [Lahendro's] union . . . for negligence arising out of the performance of duties assumed under the collective bargaining agreement; [their] sole remedy is an action for breach of fair representation" and this cause of action cannot survive NYSUT’s  motion to dismiss.

NYSUT had also filed a motion in Supreme Court to reargue its rejected motion to dismiss which was granted by the lower court. The Lahendros appealed that ruling [Lahendro II] and the Appellate Division, in a separate action [see 2011 NY Slip Op 07345], held that "individual defendants cannot be held liable for acts committed in their capacity as union representatives," citing Duane Reade, Inc. v Local 333 Retail, Wholesale, Department Store Union, 17 AD3d 277. It sustained the Supreme Court’s dismissal of the action against those defendants in their individual capacity and dismissed the Lahendros’ appeal.

Alleged malpractice was peripherally addressed in Lahendro II in that the court cited Mamorella v Derkasch, 276 AD2d 152. In Mamorella the Appellate Division considered a claim that a union provided attorney was guilty of malpractice.

Lucille Mamorella asked the Appellate Division  "to reject as against public policy the well-established rule that an attorney who performs services for and on behalf of a union may not be held liable in malpractice to individual union members where the services at issue constitute a part of the collective bargaining process."

The Appellate Division "declined to do so." The court said that "sound policy reasons as well as established precedent compel the conclusion that attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services the attorneys perform constitute a part of the collective bargaining process." The court cited Peterson v Kennedy, 771 F2d 1244, in support of its ruling.

A different standard, however, is applied in situations where the alleged malpractice action is brought by an individual against his or her personal “private attorney” rather than a "union provided attorney” as demonstrated in Tinelli v Redl, 199 F.3d 603; Affd. 121 S.Ct. 47.

Joseph Tinelli was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He retained an attorney, Frank Redl, to represent him in the matter. Following a two-day hearing, the hearing officer found Tinelli guilty of three charges of "misconduct and incompetence." The appointing authority adopted the findings of the hearing officer and imposed the recommended penalty: termination.

Tinelli appealed. According to the decision, Redl failed to take any "further action ... after the initial filing of the petition for Tinelli's appeal" in New York State Supreme Court. As a result, six months later Tinelli's "appeal expired." Tinelli sued Redl, contending that the attorney's (1) failure to perfect the Article 78 appeal and (2) his failure to ask the court for an extension of time to perfect the appeal, constituted malpractice.

The U.S. Circuit Court of Appeals decided that whether or not Redl's handling the appeal constituted malpractice depended on whether or not Tinelli's appeal would have been successful. In other words, if Tinelli would not have won the appeal regardless of the action or inaction of his attorney, there was no basis for holding the attorney liable for malpractice.

After reviewing the record, the circuit court said that "Tinelli's appeal would not have succeeded because the hearing officer's findings of misconduct and incompetence were supported by substantial evidence and because there was no abuse of discretion in recommending Tinelli's termination under the circumstances." The court dismissed Tinelli's claim, holding that his attorney could not be held liable for malpractice because he failed to perfect the appeal since Tinelli would not have been able to overturn either the administrative disciplinary determination or the penalty imposed.

Laherndro I is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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