Opinion
February 27, 1987
Appeal from the Supreme Court, Monroe County, Galloway, J.
Present — Dillon, P.J., Doerr, Boomer, Green and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiff, a teacher, commenced this action against her former employer and Superintendent for breach of contract and related claims and against her union for breach of its duty of fair representation. On a prior appeal in this matter, we dismissed plaintiff's cause of action against the union on the ground that "[s]ince plaintiff ceased to be a regular employee when she resigned effective September 4, 1984, the Union had no duty to represent her with respect to her grievance filed a month after her resignation" (Baker v. Board of Educ., 123 A.D.2d 500, 502, lv granted 69 N.Y.2d 603). Similarly, since plaintiff was not a unit member as defined in the collective bargaining agreement, the defendants Board and Superintendent had no contractual obligation to participate in plaintiff's grievance procedure. Accordingly, Special Term should not have granted plaintiff's motion to dismiss defendants' first affirmative defense and should have granted defendants' cross motion to dismiss the contractual claims (first, second and third causes of action) alleged in the complaint.
Plaintiff's fourth and fifth causes of action in her complaint based on allegations of sex discrimination under State (see, Executive Law § 296 [a]) and Federal law (see, 42 U.S.C. § 1983), however, are not dependent upon plaintiff's status as a unit member. Although these causes of action are subject to State law notice of claim requirements (see, 423 S. Salina St. v. City of Syracuse, 68 N.Y.2d 474), Special Term properly granted plaintiff leave to file a late notice of claim because defendants had actual notice of the claims and will not suffer prejudice.