PROCEDURAL HISTORY On February 22, 2018, the Plaintiff commenced a small claims action against the Defendant. The Plaintiff’s small claims complaint seeks $1000.00 for “wages/consequences of that loss/fee for this procedure.”On March 19, 2018, the Defendant, John Jablonski, by his attorneys, Bartlett, Pontiff, Stewart and Rhodes, P.C., Malcolm B. O’Hara, Esq., of counsel, moved this Court for an Order pursuant to CPLR 3211 dismissing the Plaintiff’s Small Claims Complaint for failure to state a cause of action. On May 2, 2018, the Plaintiff filed her affidavit in opposition to the Defendant’s motion to dismiss, together with attached exhibits. On May 8, 2018, the Defendant filed a Reply Affidavit of attorney Malcolm B. O’Hara, Esq., together with attached exhibits.On May 16, 2018, after having reviewed the parties’ respective affidavits and exhibits and having determined that the motion is more accurately a motion for summary judgment, this Court issued an Order and Notice, pursuant to CPLR 3211(c), notifying the parties that the motion would be considered as a motion for summary judgment, and the parties were provided until May 25, 2018 to submit any further affidavits or exhibits in support of the motion or in opposition to the motion. On May 24, 2018, the Defendant filed an affidavit of attorney Malcolm O’Hara in support of the defendant’s motion. On May 25, 2018, the Plaintiff filed her supplemental affidavit, an affidavit from June Foley, together with attached exhibits.SUMMARY JUDGMENT STANDARDThe substantive rules governing a motion for summary judgment are very well settled. Summary judgment is a drastic remedy, which cannot be granted where there exists any relevant issues of fact to be determined by the jury. See: Gaynor v. Hoosick, 87 AD2d 946 (3rd Dept. 1982); Gerard v. Inglese, 11 AD2d 381 (2nd Dept. 1960). If the facts presented permit for conflicting inferences to be drawn summary judgment must be denied. Morris v. Lenox Hill Hospital, 232 AD2d 184 (1st Dept 1996), aff’d, 90 NY2d 953 (1997). Summary judgment focuses on issue-finding and not issue-determination. Brunetti v. Musallam, 11 AD3d 208 (1st Dept. 2004), aff’d as mod, 59 AD3d 220 (1st Dept. 2009); Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 (1st Dept. 1990), app. dism., 77 NY2d 939 (1991). As such, it should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable. Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 (1st Dept. 1990), app. dism., 77 NY2d 939 (1991).The burden is on the moving party to demonstrate a prima facie entitlement to summary judgment, as a matter of law, by tendering sufficient evidence to demonstrate the absence of any material issue of fact. Ayotte v. Gervasio, 81 NY2d 1062 (1993). If this initial burden has been met, then the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial to resolve. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Mere conclusions and unsubstantiated allegations or assertions are insufficient to defeat a motion for summary judgment. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).FINDINGS OF FACT NOT IN DISPUTEBased on the parties’ affidavits and supporting exhibits, the following material facts of this action are not in dispute. The Plaintiff was previously employed as an Assistant Professor of Spanish at SUNY Adirondack [Santana May 2, 2018 Affidavit 3]. She held that position for approximately 15 years [Santana May 2, 2018 Affidavit 3]. The defendant is employed as the Vice President of Academic Affairs at SUNY Adirondack [Santana May 2, 2018 Affidavit 4, Ex.A]. The College, not the defendant, was the Plaintiff’s employer [Jablonski March 13, 2018 Affidavit, 3]. The College has a collective bargaining agreement [CBA] with the Plaintiff’s union, the Adirondack Community College Faculty Association, which governs the terms and conditions of the Plaintiff’s employment, including any suspension from employment [Santana May 2, 2018 Affidavit Ex. G and H].On October 13, 2017, the Defendant, acting in his capacity as Vice President, sent a letter to the Plaintiff, indicating that the Plaintiff was suspended, without pay, for one day effective October 20, 2017 [Santana May 2, 2018 Affidavit 4, Ex.A]. The Plaintiff was suspended for allegedly failing to be on time for her assigned class and for insubordination [Santana May 2, 2018 Affidavit 4, Ex.A].On November 17, 2017, the Plaintiff’s union filed a grievance concerning the Plaintiff’s suspension, asserting that the College breached Article XI,E,3i of the Collective Bargaining Agreement and alleged that any suspension must be with pay and suspensions can only be imposed by the College President [Santana May 2, 2018 Affidavit, Ex. G and H]. On or about February 2, 2018, the Plaintiff resigned her employment with the College [Jablonski March 13, 2018 Affidavit, 6, Ex.B and Santana May 2, 2018 Affidavit 6[. On April 6, 2018, the College and the Plaintiff's union entered into a Settlement Agreement [O'Hara May 7, 2018 Affidavit 12, Ex.1]. Pursuant to this Settlement Agreement, the Plaintiff was repaid for her one (1) day of withheld salary [O'Hara May 7, 2018 Affidavit 12, Ex.1]. The Plaintiff acknowledges that she has been repaid her wages for the one day suspension, and has withdrawn her claim for lost wages [Santana May 25, 2018 Affidavit 1].Based on her affidavits, the Plaintiff asserts that the Defendant breached the “written guidelines given in the contract that only the President of the college can suspend with no pay implication.” [Santana May 25, 2018 Affidavit 7]. The Plaintiff claims that the Defendant “initiated an illegal suspension with pay penalization of $403.31 as the Vice President at SUNY Adirondack/Adirondack Community College.” [Santana May 2, 2018 Affidavit 4]. Thus, the Plaintiff’s cause of action is that the Defendant breached or caused the College to breach the CBA by suspending her for one day, without pay, when the CBA provided that only the College President could suspend and any suspension must be with pay.Based on her May 25, 2018 Affidavit, the Plaintiff is no longer seeking lost wages [Santana May 25, 2018 Affidavit 1]. Instead, she is now seeking damages for the defendant’s alleged breach of the collective bargaining agreement, including $400.00 in late rent charges, statutory interest on her repaid wages from October 13, 2017 to April 14, 2018, together with mailing fees, gas, phone calls and the costs of this action [Santana May 25, 2018 Affidavit s 1-7].CONCLUSIONS OF LAWThis Court agrees with the Defendant that the Plaintiff’s cause of action, either for a breach of the CBA or for a tortious interference with the Plaintiff’s contractual employment rights must be dismissed as a matter of law.It is well settled that, absent special circumstances that are not alleged here, an employee lacks standing to commence an action for breach of a collective bargaining agreement. See; Tomlinson v. Bd. of Educ. of Lakeland Cent. School Dist. of Shrub Oak, 223 AD2d 636 (2d Dept. 1996)(an employee lacked standing to sue school district board of education for breach of collective bargaining agreement after employer rejected arbitrator’s advisory decision on employee’s grievance, despite provision of collective bargaining agreement under which, if either party failed to accept arbitrator’s award, any “party affected” could pursue any remedy available under law, as the “parties” to contract were union and employer, not plaintiff employee); Matter of Board of Educ. v. Ambach, 70 NY2d 501, 508, 522 N.Y.S.2d 831, 517 N.E.2d 509; Sasso v. City of Yonkers, 213 AD2d 392, 623 N.Y.S.2d 303; Serringer v. Bd. of Trustees of Vil. of Tuxedo Park, 265 AD2d 561, 561 (2d Dept. 1999); Ponticello v. County of Suffolk, 225 AD2d 751 (2d Dept. 1996)(When employer and union enter into collective bargaining agreement that creates grievance procedure, an employee subject to agreement may not sue employer directly for breach of that agreement but must proceed, through union, in accordance with contract).In the present case, the Plaintiff’s union pursued the Plaintiff’s requested grievance to a settlement. In fact, the union recovered the Plaintiff’s lost wages in its settlement with the College. Thus, the Plaintiff has failed to demonstrate any special circumstances, such as a failure by the union to provide fair representation, that would allow her to seek an independent claim for the alleged breach of the College’s collective bargaining agreement. Ponticello v. County of Suffolk, 225 AD2d 751 (2d Dept. 1996). Moreover, even if the CBA allowed the Plaintiff to commence a separate judicial action for breach of that contract, the Plaintiff’s claim for breach of contract by the Defendant would still be dismissed. The Defendant correctly asserts that he is not a proper party to a breach of contract action. The parties to the CBA are the union and the college, not the Plaintiff and the Defendant. The Defendant has no privity of contract with the Plaintiff and was never the Plaintiff’s employer. See; Klein v. Empire Blue Cross and Blue Shield, 173 AD2d 1006, 1008 (3d Dept. 1991); Conroy v. Ford Motor Co., 147 AD2d 885, 887, 538 N.Y.S.2d 110; Lupinski v. Village of Ilion, 59 AD2d 1050, 1051, 399 N.Y.S.2d 956).As a result, the Plaintiff’s claim for breach of the CBA must be dismissed. Furthermore, to the extent that the Plaintiff’s claims can be viewed as a cause of action for tortious interference with her contractual employment rights, that potential cause of action still fails.To recover on a claim of tortious interference with a contract, a plaintiff must show the existence of a valid contract between her and a third party, the defendant’s knowledge of that contract, the defendant’s intentional procurement of the third party’s breach of the contract without justification, an actual breach of the contract, and damages resulting therefrom. See; Pabon v. Many, 99 AD3d 773 (2d Dept. 2012); Lama Holding Co. v. Smith Barney, 88 NY2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370; Miller v. Theodore-Tassy, 92 AD3d 650, 651, 938 N.Y.S.2d 172.In the present case, the Plaintiff is not a party to the CBA. Instead, the union and college are the parties to that agreement. Thus, the Plaintiff cannot demonstrate the first element of a claim for tortious interference with a contract (i.e.; the existence of a valid contract between her and a third party). More importantly, since an essential element of the Plaintiff’s cause of action is that the Defendant actually breached or caused the College to breach the CBA, any resolution of a tortious interference cause of action would require an interpretation of the CBA to determine whether the Plaintiff’s suspension was justified and procedurally proper under the terms and provisions of the CBA. As a matter of law, any cause of action for tortious interference of the CBA is, therefore, preempted by federal labor law. See; Pabon v. Many, 99 AD3d 773, 774-75 (2d Dept. 2012); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-406, 108 S.Ct. 1877, 100 L.Ed.2d 410; Anderson v. Aset Corp., 416 F.3d 170, 171-172; Kimbro v. Pepsico, Inc., 215 F.3d 723, 727; Baylis v. Marriott Corp., 906 F.2d 874, 877.Based on the foregoing, the Defendant’s motion to dismiss the Plaintiff’s small claims complaint is granted. The Plaintiff’s complaint is dismissed, with prejudice.Dated: June 5, 2018at Glens Falls, New YorkENTER.
