GRAHAME v. ROCHESTER TEACHERS ASSOCIATION NYSUT AFT AFL CIO (1999)

 Supreme Court properly denied defendant's motion to dismiss the complaint, which alleges a cause of action for negligent misrepresentation.   Plaintiff alleges that defendant's representative provided erroneous information to plaintiff's decedent regarding her retirement benefits (see, Ossining Union Free School Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 541 N.Y.S.2d 335, 539 N.E.2d 91).   We reject the contention of defendant that the complaint must be dismissed because plaintiff failed to allege that the individual members of defendant union ratified the acts of their representative.   Plaintiff is not required to allege ratification of the alleged negligent act where the action against defendant union is based on the negligence of its agent “in the course of performing an essential activity of the [union]” (Torres v. Lacey, 5 Misc.2d 11, 13, 159 N.Y.S.2d 411, mod. on other grounds 3 A.D.2d 998, 163 N.Y.S.2d 451).   Defendant further contends that plaintiff's cause of action is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems.   We disagree.   The collective bargaining agreement does not address employees' retirement benefits, and thus the alleged negligent misrepresentation action was not subsumed by the duty of fair representation (see, McClary v. Civil Serv. Empls. Assn., 133 A.D.2d 522, 520 N.Y.S.2d 88;  see generally, United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 371, 110 S.Ct. 1904, 109 L.Ed.2d 362).

Order unanimously affirmed with costs.

MEMORANDUM: