The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 4-15 Answering Papers 18 Reply 19 Decision/Order Defendant County of Suffolk (the County) moves this Court for dismissal of the complaint pursuant to CPLR §§3211 (a) (1), (3), (5) and (7). Plaintiffs oppose the requested relief.1 The undisputed facts are that plaintiffs Minerva and Brockman were members of the Suffolk County Park Police Unit (PPU) who were transferred to the Suffolk County Police Department (SCPD) on or about October 7, 2014, pursuant to statute (Civil Service Law §70 [7]), upon the dissolution of the PPU. Since 2009, the PPU has been represented by its exclusive collective bargaining agent, the Suffolk County Police Benevolent Association (the PBA). Effective September 23, 2014, Civil Service Law, Article V-Personnel Changes, §70, Transfers, was amended by adding subdivision (7) that provides for the “[t]ransfer of Suffolk county park officers levels I-IV to the positions of Suffolk county police officers. Notwithstanding the provisions of subdivision one of this section or any other provision of law, the county of Suffolk may, by agreement negotiated between such county and an employee organization pursuant to article fourteen of this chapter, provide for the transfer of now existing Suffolk county parks police officers levels I-IV to positions of Suffolk county police officers. The transfer of now existing positions may be effectuated without regard to any eligible lists or preferred lists for reinstatement.” Further undisputed is that a Memorandum of Agreement (MOA) dated September 30, 2014 between the County’s Director of the Office of Labor Relations and Noel DiGerolamo, president of the PBA provided the terms of the transfer of the officers and settlement of an outstanding PPU contract for the years dated 2011 through 2014. On October 7, 2014, the Suffolk County Legislature approved Resolution No. 769-2014 authorizing the County Executive to execute an agreement with the Suffolk County PBA/PPU covering the terms and conditions of employment for January 1, 2011 through December 31, 2018. The Resolution states in pertinent part that “the County, the President of the Suffolk County [PBA] and the Suffolk County [PBA], Police Park Unit have reached an agreement covering the terms and conditions of employment for the period January 1, 2011 through December 31, 2018, subject to the approval, to the extent necessary, by the Suffolk County Legislature…” The Resolution also states that the “agreement has been ratified by the Suffolk County Police Benevolent Association and the Suffolk County Police Benevolent Association, Park Police Unit…” The complaint essentially alleges that the two plaintiffs lost a certain amount of vacation, personal, deferred holiday and sick days, although the Court notes that the MOA provides the transferred officers with a salary “at the next highest salary above their current rate,” and that accruals of time for vacation, deferred holiday and personal matters, although reduced, are paid at a rate ten dollars more per hour than previously paid to PPU officers before the transfer. Sick days were transferred on a two-to-one basis, but PPU members who did not pay into their health insurance at the time of transfer were not required to pay into their health insurance when they transitioned to the Suffolk County Police Department. The complaint also alleges, inter alia, that there were other “illegal takings,” including being “stripped of all ranks, promotional titles and seniority/hire dates,” and having to wait for longevity payments until their sixth year as Suffolk County Police Officers. The complaint also alleges that PPU members were not consulted regarding the MOA and were not given “any means to voice their opinions, challenge it or ratify it.” The complaint alleges six causes of action sounding in violation of the Civil Service Law (Article 70), violation of New York State labor laws (198 [1-a]), breach of contract based on Labor Law §198-c, breach of contract based upon an “implied promise,” conversion, and there is a cause of action seeking a declaratory judgment that each transferred PPU officer is entitled to maintain his seniority or date of hire as well as any promotion rank earned in the PPU. Plaintiffs also seek preliminary and permanent injunctions against the County, compensatory damages for “economic lass (sic), humiliation, embarrassment, physical injury, and mental and emotional distress, including but not limited to, loss of self-esteem and continued stress and anxiety…,” punitive damages and attorneys’ fees. The Court notes that the PBA, which is acknowledged by plaintiffs to be the PPU’s exclusive collective bargaining agent and was the PPU’s agent at the time of the transfer, is not named as a defendant in this action. Only the County of Suffolk is a named defendant. Moreover, there is no allegation that the PBA breached its duty to the plaintiffs. In fact, in opposition, plaintiffs’ counsel acknowledges that there is no specific cause of action alleging that the PBA, acting on behalf of the PPU, failed to fairly represent its members, but only that the complaint “raise[s] the issue.” Counsel maintains that, ‘[i]n short the pleading, at a minimum, lay (sic) out the basics (sic) claims of bad faith on behalf of the Union, by ignoring the interest of the PPU, without any rational explanation, in actively seeking terms and conditions which would negatively affect the rights and benefits of the group known as the PPU in the contract…” Essentially, plaintiffs contend in their opposition papers that neither the County nor the PBA “has or had authority to negotiate away benefits or compensation which was already earned by its members.” “A union member generally has no individual rights under a collective bargaining agreement which he or she can enforce against an employer [citations omitted]. In the absence of a contract provision stating otherwise, an employee may proceed directly against the employer only when the union fails in its duty of fair representation” (Hickey v. Hempstead Union Free School District, 36 AD3d 760, 761 [2d Dept 2007]). “It is necessary to show that a union’s conduct was arbitrary, discriminatory, or in bad faith in order to establish a breach of the duty of fair representation” (Id.). As noted, plaintiffs’ counsel advances the contention that the PBA breached its duty of fair representation only in opposition to defendant’s motion seeking dismissal on the basis that the plaintiffs do not have standing/legal capacity to sue the County. Plaintiffs commenced this action on March 2, 2017, only after their 2015 federal action alleging 42 USC §1983 violations was dismissed by Memorandum and Order dated January 30, 2017 (Bianco, USDJ, EDNY). In his Memorandum and Order, Judge Bianco wrote, “[t]o the extent that plaintiffs take issue with the terms reached and agreed to by the PBA, the appropriate course of action for plaintiffs is their state law claim asserting breach of duty of fair representation” (Minerva v. County of Suffolk, 2017 WL 395209, fn. 5 [EDNY 2017]). Despite that guidance offered by the federal court, plaintiffs in this action do not allege any such cause of action against the PBA. In any event, plaintiffs in this action designated the PBA as their collective bargaining agent, and collective bargaining agents, such as unions, may negotiate certain benefits in exchange for other considerations (see Schacht v. New York, 39 NY2d 28 [1976]), and absent any claim, let alone a showing, that the PBA acted outside the scope of its representational authority in agreeing to the terms of the MOA, the plaintiffs are bound by the PBA’s actions taken on their behalf during the negotiation process (Ballentine v. Koch, 89 NY2d 51, 58 [1996]). In this matter, the MOA increased PPU members’ salaries, preserved non-contributory health insurance for members who did not pay into their health insurance while they were PPU officers, and preserved seniority for the purposes of determining retirement age. As noted, while sick leave accrual was transferred on two-for-one basis, the hourly rate of pay for deferred holiday pay was increased by ten dollars per hour such that the example given in paragraph 3 of the MOA demonstrates that the transferred PPU members will receive the same sum of money upon recalculation. There being no indication in the submitted papers that plaintiffs’ union failed to adequately represent their interests, and no specific allegation that the union breached its duty of fair representation, the plaintiffs lack standing to maintain the action against their employer, Suffolk County, and the action is dismissed in its entirety pursuant to CPLR §3211 (a)(3) (see generally Wells Fargo Bank Minnesota, N.A. v. Mastropaolo, 42 AD3d 239, 243 [2d Dept 2007]). Since the County raises the issue that plaintiffs have failed to state a claim pursuant to CPLR §3211 (a)(7), the Court herein addresses this argument, finding that this action is also dismissible for that reason. When deciding a motion to dismiss pursuant to CPLR §3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v. Picozzi III, 70 AD3d 655 [2d Dept 2010]). The sole criterion on a motion to dismiss is “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d, 342, 351 [2013]; Leon v. Martinez, 84 NY2d 83, 87-88, [1994]; Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Civil Service Law §70 (7) was specifically enacted to effect the transfer of the PPU officers to the Suffolk County Police Department, notwithstanding any other provision of law, and upon agreement of Suffolk County and the PBA pursuant to article fourteen of the Civil Service Law. “Article 14 provides that employee organizations, such as the PBA, may negotiate the terms of conditions — meaning salaries, wages, hours, and other terms and conditions of employment, N.Y. Civ. Serv. Law §201 (4) — of the employees they represent with public employers [citations omitted]. Article 14 does not impose any restrictions pertaining to seniority or vacation time, sick leave, or annual leave, nor does §70(7). Further, neither Article 14 nor §70 (7) imposes the requirements set forth in §70 (2) as plaintiffs argue; §70 (7) explicitly states the transfer should occur upon agreement between Suffolk County and the PBA notwithstanding any other provision of law. As such Suffolk County and the transferred officers — through the PBA-were authorized by §70 (7) to decide how seniority, vacation time, sick leave, and annual leave would be treated upon the transfer” (Minerva, supra at 7). Accordingly, plaintiffs claim that the County violated Civil Service Law §70 (2) is not a cognizable action against Suffolk County considering Civil Service Law §70 (7). Similarly, plaintiffs’ second and third causes of action claiming that the County violated Labor Law §198 (1-a) and 198-c (1) based on the theory that plaintiffs were deprived of their rights, property and privileges as the product of bad faith and a “tortious action and conspiratorial plan perpetrated against the Plaintiffs” also fail to state claims. Specifically, §198 (1-a) provides a remedy against an employer paying less than the wage to which the employee is entitled, and §198-c (1) punishes “any employer who is party to an agreement to pay or provide benefits or wage supplements to employees…and who fails, neglects or refuses to pay the amount or amounts necessary to provide such benefits or furnish such supplements within thirty days after such payments are required to be made…” The complaint does not contain any allegations that the County has failed to pay the benefits as called for by the terms of the transfer of the PPU officers to the Suffolk County Police Department; accordingly, plaintiffs have failed to state claims pursuant to the Labor Law. Plaintiffs’ remaining causes of action for breach of implied contract, conversion and for declaratory judgment are all based upon the same facts as alleged concerning the negotiation of the PPU contract and transfer of those officers to the Suffolk County Police Department; accordingly, they are duplicative, warranting dismissal. Finally, the Court notes that punitive damages are not available against a political subdivision of the State (Sharapata v. Town of Islip, 56 NY2d 332 [1982]; Johnson v. Kings County District Attorney’s Office, 308 AD2d 278 [2d Dept 2003]). Having determined that defendant Suffolk County is entitled to dismissal of the complaint based upon the foregoing, it is not necessary for the Court to consider defendant’s remaining contentions, and the complaint is dismissed in its entirety. The foregoing constitutes the Decision and Order of this Court. Dated: January 7, 2020 Riverhead, NY FINAL DISPOSITION [X] NON-FINAL DISPOSITION []
