Opinion
January 13, 1998
Appeal from the Supreme Court, New York County (Stanley Sklar, J.).
The IAS Court properly found that petitioner, a union member, has no right to sue respondent to enforce a provision of the collective bargaining agreement absent a showing that the union breached its duty of fair representation ( see, Matter of Board of Educ. v. Ambach, 70 N.Y.2d 501, 511, cert denied sub nom. Margolin v. Board of Educ., 485 U.S. 1034). The mere refusal by a union to proceed with a grievance does not in itself establish a breach of the duty of fair representation ( see, Albino v. City of New York, 80 A.D.2d 261, 270). Rather, "there must be a showing that the activity, or lack thereof, which formed the basis of the charges against the union was deliberately invidious, arbitrary or founded in bad faith" ( Matter of Civil Serv. Empls. Assn. v. Public Empl. Relations Bd., 132 A.D.2d 430, 432, affd on other grounds 73 N.Y.2d 796).
The court also properly held that petitioner prematurely sought judicial review without waiting to learn the determination of the review process provided by the contract and section 5.3.4 of respondent's bylaws ( see, Matter of Frasier v. Board of Educ., 71 N.Y.2d 763, 766; Lewis v. Macchiarola, 73 A.D.2d 663, affd 53 N.Y.2d 629).
Finally, petitioner failed to show that the termination of his probationary appointment was made in bad faith ( see, Matter of Blum v. Quinones, 139 A.D.2d 509, appeal dismissed 72 N.Y.2d 908).
Concur — Sullivan, J.P., Milonas, Ellerin, Nardelli and Mazzarelli, JJ.