FLOWERS v. DISTRICT COUNCIL 37 (2025)

Order, Supreme Court, New York County (Judy H. Kim, J.), entered September 26, 2023, which granted the motions of defendants District Council 37 AFSCME, AFL–CIO (DC 37) and New York City Health and Hospitals Corporation (H+H) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly dismissed plaintiff's claims against DC 37, an unincorporated association, because plaintiff failed to plead and prove that the union's “entire membership authorized and later ratified [the union's] actions,” as required by the Martin rule (Dowlah v. American Arbitration Assn., 221 A.D.3d 426, 427, 199 N.Y.S.3d 474 [1st Dept. 2023], lv denied 41 N.Y.3d 910, 2024 WL 3057580 [2024];  see Palladino v. CNY Centro, Inc., 23 N.Y.3d 140, 146, 989 N.Y.S.2d 438, 12 N.E.3d 436 [2014];  Martin v. Curran, 303 N.Y. 276, 280, 101 N.E.2d 683 [1951];  General Associations Law § 13).  Plaintiff failed to raise an issue of fact as to DC 37's unincorporated status, which was not a matter solely within the union's knowledge.

DC 37 did not waive its right to assert the Martin rule at summary judgment by failing to raise it as an affirmative defense.  The Martin rule establishes “pleading and evidence requirements” for plaintiff to satisfy to “maintain[ ] [this] action” (Salemeh v. Toussaint, 25 A.D.3d 411, 411, 810 N.Y.S.2d 1 [1st Dept. 2006]).  DC 37's asserted defense that the “[c]omplaint fails to state a claim ․ against [DC 37] upon which relief may be granted” encompassed DC 37's later argument that plaintiff failed to meet his burdens, including under the Martin rule (see Morton v. Mulgrew, 144 A.D.3d 447, 448, 39 N.Y.S.3d 789 [1st Dept. 2016];  Salemeh, 25 A.D.3d at 411–412, 810 N.Y.S.2d 1).

The court also properly dismissed plaintiff's breach of contract claim against his employer, H+H, because his employment was subject to a collective bargaining agreement (CBA) that contained a grievance procedure.  “[O]nly when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer” (Matter of Board of Educ., Commack Union Free School Dist. v. Ambach, 70 N.Y.2d 501, 508, 522 N.Y.S.2d 831, 517 N.E.2d 509 [1987], cert denied sub nom.  Margolin v. Board of Educ., Commack Union Free Sch. Dist., 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 908 [1988]).

Plaintiff failed to raise an issue of fact as to DC 37's fair representation of him.  Evidence that plaintiff's union representative promised to work on plaintiff's complaints but then ignored his communications and failed to attend meetings does not suggest that the union's “activity ․ was deliberately invidious, arbitrary or founded in bad faith” (Matter of Sapadin v. Board of Educ. of City of N.Y., 246 A.D.2d 359, 360, 666 N.Y.S.2d 421 [1st Dept. 1998] [internal quotation marks omitted]).  The president of plaintiff's local expressly notified plaintiff of the union's decision not to pursue his grievance, and its “mere refusal ․ to proceed with [his] grievance does not in itself establish a breach of the duty of fair representation” (id. at 359, 666 N.Y.S.2d 421).  The CBA provision permitting plaintiff to pursue grievances on his own, as well as his deposition testimony that he had previously done so, undermine his assertion that he was never made aware that he had that right.