The Appellate Division affirmed the dismissal of Plaintiff's claims against his union employer "for reasons other than those stated by the motion court"

The Plaintiff in this action alleged that:

1. Plaintiff was a member of DC 37's professional employees' union, the Federation of Field Representatives [FFR], "which has a [collective bargaining agreement] with . . . DC 37";

2. Said CBA provides that "[s]everance pay shall be paid to an employee . . . who is discharged;" 

3. That employees hired after 2005 "accrue severance pay of one week's pay for every 12 months of service"; and 

4. DC 37 "terminated [Plaintiff] without explanation and refused to pay him any severance pay." 

The Martin Rule is cited in this decision by the Appellate Division, wherein the Court notes that Plaintiff's contract and quasi-contract claims against his union employer did  not fall within the "narrow exception to the Martin rule" for "suit[s] by a union member against a union arising from wrongful expulsion".

The Appellate Division then affirmed the Supreme Court's dismissal of Plaintiff's contract and quasi-contract claims against DC 37, but "for reasons other than those stated by the motion court".

The text of Appellate Division's decision in the instant action is set out below:

Alvarado v Local 1549 N.Y.C.

2026 NY Slip Op 00969

Decided on February 19, 2026

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 19, 2026
Before: Manzanet-Daniels, J.P., Scarpulla, Friedman, Chan, Hagler, JJ.

Index No. 155407/24|Appeal No. 5896|Case No. 2025-02827|

[*1]Oscar Alvarado, Plaintiff-Appellant,

v

Local 1549 — N.Y.C. Clerical Administrative Employees, et al., Defendants-Respondents.

Ballon Stoll P.C., New York (Marshall B. Bellovin of counsel), for appellant.

Cohen, Weiss and Simon LLP, New York (Melissa S. Woods of counsel), for respondents.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about April 7, 2025, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

In this action for unpaid wages, plaintiff alleges that he was "hired by Local 1549 under the purview of [defendant DC 37] and AFSCME as a Coordinator of Strategic Planning and Special Projects," and that "[d]efendants terminated [p]laintiff without explanation and refused to pay him any severance pay."

Plaintiff alleges that he was a member of DC 37's professional employees' union, the Federation of Field Representatives (FFR), "which has a [CBA] with . . . DC 37." The CBA provides that "[s]everance pay shall be paid to an employee . . .who is discharged," and that employees hired after 2005 "accrue severance pay of one week's pay for every 12 months of service." Plaintiff further alleges that the DC 37 Employee Manual similarly states that "[s]everance pay shall be paid to employees who are discharged" and "shall amount to one week's pay for each full year of service." Plaintiff specifically alleges that his "employment relationship" with defendants "was governed by [the] Employee Manual with DC 37 and a Union Contract [i.e., the CBA] between DC 37, AFSCME, and [FFR]." In his complaint plaintiff asserts causes of action for violation of New York Labor Law § 198-c, breach of contract, implied contract, promissory estoppel, and quantum meruit.

Plaintiff's cause of action pursuant to Labor Law § 198-c was properly dismissed because that specific provision of the Labor Law does not create a private right of action (see e.g. Stoganovic v Dinolfo, 92 AD2d 729, 729 [4th Dept 1983], affd 61 NY2d 812 [1984]). In any event, the claim pursuant to § 198-c is preempted by the federal Employee Retirement Income Security Act (see Gilbert v Burlington Indus., Inc., 765 F2d 320, 327-328 [2d Cir 1985]).

We affirm the dismissal of plaintiff's contract and quasi-contract claims "for reasons other than those stated by the motion court" (J. Remora Maintenance LLC v Efromovich, 103 AD3d 501, 501 [1st Dept 2013], lv denied 21 NY3d 862 [2013]). While the court did not reach defendants' argument based on the unions' status as unincorporated associations, we affirm on that ground. Plaintiff was required to, but did not, plead "that the entire membership authorized and later ratified [defendants'] actions" (Dowlah v Am. Arbitration Assn., 221 AD3d 426, 427 [1st Dept 2023], lv denied 41 NY3d 910 [2024]), as required by Martin v Curran (303 NY 276, 280 [1951]; see Palladino v CNY Centro, Inc., 23 NY3d 140, 146 [2014]). Plaintiff's contract and quasi-contract claims against his union employer do not fall within the "narrow exception to the Martin rule" for "suit[s] by a union member against a union arising from wrongful expulsion" (id. at 147-148).

We have considered plaintiff's additional arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 19, 2026

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A CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner

An employee [Petitioner] of the New York City Department of Correction [DOC] was served with disciplinary charges, which disciplinary charges were sustained by a DOC human resources representative. Subsequently Petitioner executed a waiver of his right to a hearing pursuant to Civil Service Law §75.

Petitioner then commenced the instant to CPLR Article 78 proceeding seeking a court order compelling DOC to submit his disciplinary case to the New York City Office of Administrative Trials and Hearings [OATH] for adjudication pursuant to Civil Service Law §75. 

Supreme Court granted Petitioner's motions and denied DOC's cross-motion to dismiss Petitioner's Article 78 action. DOC appealed the Supreme Court's determinations. 

The Appellate Division reversed Supreme Court's order and judgment, on the law, with costs, granted DOC's petition and dismissed Petitioner's Article 78 proceeding.

Citing Matter of Kaneev v City of New York Envtl. Control Bd., 149 AD3d 742, the Appellate Division explained that a proceeding initiated pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. 

In the instant matter the Appellate Division noted that Petitioner executed the waiver on February 11, 2021, and DOC's labor relations representative upheld the disciplinary charges against the Petitioner on August 4, 2021. Since Petitioner did not commence the instant proceeding until September 1, 2022, the Appellate Division held that Petitioner's Article 78 proceeding was time-barre, citing CPLR 217(1).

In the words of the Appellate Division, Supreme Court "should have granted DOC's cross-motion to dismiss Petitioner's Article 78 action on the ground that the proceeding was time-barred" and that "The parties' remaining contentions need not be reached in light of the foregoing". 

Click HERE to access the decision of the Appellate Division posted on the Internet.

Employee's making misleading entries into agency records and other acts of insubordination results in disciplinary action

New York City Office of Administrative Trials and Hearings' Administrative Law Judge [ALJ] Astrid B. Gloade recommended a 22-day suspension without pay as the penalty to be imposed on an agency employee [Respondent] charged with, and found guilty of, insubordination and making a false, deceptive, and misleading entry into an agency record. 

After being directed not to do so, Respondent worked on and sent emails concerning matters not assigned to her and copied the agency's Commissioner and the agency's Deputy Commissioner on routine work emails. Respondent also submitted a request to the agency's Office of Information Technology [OIT] service desk for assistance on behalf of the Commissioner without the Commissioner's knowledge or approval in an effort to restore Respondent's access to an agency database. 

The ALJ found that Respondent willfully disobeyed Respondent's supervisor’s clear and unambiguous instructions that Respondent:

[1] not send emails regarding issues not assigned to her, and, in addition, 

[2] not to send emails addressed to individuals outside Respondent's chain of command. 

Judge Gloade also found that Respondent made a false entry in agency records when she submitted an OIT ticket "on the Commissioner’s behalf" without authorization and misrepresented that she sent the request on the Commissioner’s behalf. 

The ALJ recommended Respondent be suspended for 22 days without pay, noting the recommended penalty was coupled with a 15-day prehearing suspension that Respondent had already served. 

Click HERE to access Judge Gloade's findings and recommended penalty posted on the Internet.

Petitioner denial of a reasonable accommodation dismissed for failure to state a cause of action

Supreme Court had granted the City of New York's motion to dismiss Plaintiff complaint on the grounds that it was untimely. However, the Appellate Division subsequently opined that "The complaint should not have been dismissed as untimely. Plaintiff chose to assert claims under the New York State and New York City Human Rights Laws rather than seeking administrative review of the denial of his reasonable accommodation request, as was his right".

The Appellate Division concluded that the complaint was timely filed because Plaintiff's claims are governed by a three-year statute of limitations rather than the statutes of limitations controlling the initiating of litigation under color of the New York State and New York City Human Rights Laws.

Nonetheless, the Appellate Division decided that Supreme Court properly dismissed the action "because even under a lenient notice pleading standard, it fails to state a cause of action for discrimination for failure to provide an accommodation under the State or City Human Rights Laws".  

The Appellate Division's ruling explained that "Plaintiff's bare allegation that taking the vaccine conflicted with the Ten Commandment's broad admonition 'thou shalt not kill' was insufficient to show that he adhered to a bona fide religious practice or doctrine that [Defendants] failed to accommodate", citing a number of decisions by New York State courts including Matter of Marsteller v City of New York, 217 AD3d 543 [appeal dismissed and leave to appeal denied 41 NY3d 960].

The Appellate Division also rejected Plaintiff's claim that the Defendant "failed to engage in a cooperative dialogue" as unavailing, again citing Matter of Marsteller v City of New York, 217 AD3d 543 [appeal dismissed and leave to appeal denied 41 NY3d 960].

With respect to Plaintiff's cause of action seeking a declaratory judgment ordering the New York City Police Department to consider and grant his application for reinstatement, the Appellate Division noted that such a request is "essentially an Article 78 claim for mandamus". In the words of the Appellate Division, "Plaintiff failed to show that defendants have a nondiscretionary duty to grant the relief requested, or that he has a clear legal right to reinstatement" and the decision not to reinstate Plaintiff is not subject to mandamus because it involves the exercise of discretion.

The Appellate Division then "unanimously affirmed" the City's motion to dismiss Plaintiff's complaint, without costs

Click HERE to access the Appellate Division's decision posted on the Internet.