SHORTT v. CITY OF NEW YORK

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Supreme Court, Appellate Division, Second Department, New York.

Myrtle SHORTT, Appellant, v. CITY OF NEW YORK, et al., Respondents, et al., Defendants.

2017–07433

Decided: June 12, 2019

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ. Leav & Steinberg, LLP, New York, N.Y. (Ricardo J. Martinez of counsel), for appellant. Harris Beach PLLC, New York, N.Y. (Victoria A. Graffeo, Bradley M. Wanner, and Andrew J. Orenstein of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated May 1, 2017.  The order granted that branch of the motion of the defendants City of New York and City of New York Department of Education which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and that branch of the motion of the defendants City of New York and City of New York Department of Education which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them is denied.

The plaintiff, a school teacher employed by the defendant City of New York Department of Education (hereinafter DOE), commenced this action to recover damages for personal injuries she alleges she sustained as a result of an elevator accident that occurred on January 4, 2013, at the high school where she worked.  According to the plaintiff, after she entered an elevator at the school, it began to jerk as it was ascending, and thereafter, stopped above the third floor between floors, moving up and down several times and causing her to hit her lower back on the wall of the elevator.  Thereafter, she was trapped inside the elevator until she was extracted from it, which required her to jump from the elevator to the third floor.

Prior to commencing this action, the plaintiff applied to the DOE for “line of duty injury” paid medical leave pursuant to the terms of a collective bargaining agreement (hereinafter the CBA).  The DOE denied the application without providing the plaintiff with a reason for its determination.  The plaintiff opted not to challenge the DOE determination through a medical arbitration proceeding pursuant to the terms of the CBA, and thereafter commenced this action.

The DOE and the defendant City of New York (hereinafter together the defendants), moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them on the basis that the plaintiff failed to exhaust her administrative remedies under the CBA. Alternatively, they argued that dismissal was warranted under collateral estoppel and/or res judicata.  By order dated May 1, 2017, the Supreme Court granted that branch of the motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the defendants.  The court determined that the plaintiff failed to exhaust her administrative remedies under the CBA. The plaintiff appeals, and we reverse.

An employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies (see Matter of Plummer v. Klepak, 48 N.Y.2d 486, 489–490, 423 N.Y.S.2d 866, 399 N.E.2d 897;  Spano v. Kings Park Cent. School Dist., 61 A.D.3d 666, 670–671, 877 N.Y.S.2d 163) or face dismissal of the action (see Sheridan v. Town of Orangetown, 21 A.D.3d 365, 365–366, 799 N.Y.S.2d 575;  see also Matter of Dorme v. Slingerland, 41 A.D.3d 596, 596, 838 N.Y.S.2d 159).  Here, however, the plaintiff seeks to recover damages against the defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA's “line of duty injury” paid leave grievance provisions (see Bregman v. East Ramapo Cent. Sch. Dist., 122 A.D.3d 656, 657, 997 N.Y.S.2d 91;  Matter of Van Tassel v. County of Orange, 204 A.D.2d 560, 561, 614 N.Y.S.2d 193).  There is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA (see Bregman v. East Ramapo Cent. Sch. Dist., 122 A.D.3d at 657, 997 N.Y.S.2d 91;  Matter of Van Tassel v. County of Orange, 204 A.D.2d at 561, 614 N.Y.S.2d 193).

The defendants' contention that dismissal is also warranted on the basis of collateral estoppel and res judicata is without merit (see Chiara v. Town of New Castle, 61 A.D.3d 915, 916, 878 N.Y.S.2d 755;  Lasky v. City of New York, 281 A.D.2d 598, 599, 722 N.Y.S.2d 391).  Collateral estoppel is inapplicable, as the defendants failed to demonstrate that the issue that the plaintiff seeks to pursue here was necessarily decided by the DOE when it denied the plaintiff's “line of duty injury” paid leave application (see Melendez v. McCrowell, 139 A.D.3d 1018, 1020, 32 N.Y.S.3d 604;  Lauro v. City of New York, 67 A.D.3d 744, 746, 889 N.Y.S.2d 215).  Likewise, the doctrine of res judicata, or claim preclusion, also is inapplicable to the plaintiff's complaint because the relief she seeks could not have been awarded within the context of the prior administrative proceeding (see Lasky v. City of New York, 281 A.D.2d at 599, 722 N.Y.S.2d 391).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

RIVERA, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.