Eugene Palladino, Appellant,v.CNY Centro, Inc., et al., Respondents.BriefN.Y.February 18, 2014FERRARA, FIORENZA, LARRISON, BARRETT & REITZ, P.C. Craig M. Atlas, Esq., of Counsel Attorneys for Defendant-Respondent CNY Centro, Inc. 5010 Campuswood Drive East Syracuse, New York 13057 Telephone: (315) 437-7600 Fax: (315) 437-7744 New York State Court of Appeals EUGENE PALLADINO, Plaintiff-Appellant, - vs - CNY CENTRO, INC., CHARLES WATSON as the Business Agent of the AMALGAMATED TRANSIT UNION, LOCAL 580, and the AMALGAMATED TRANSIT UNION, LOCAL 580, Defendants-Respondents. Onondaga County Index Nos.: 2008-8650 and 2009-0473 APL-2013-00067 BRIEF ON BEHALF OF DEFENDANT-RESPONDENT CNY CENTRO, INC. Date Submitted: August 22, 2013 To be argued by: Craig M. Atlas, Esq. Time requested: 15 minutes i DISCLOSURE STATEMENT PURSUANT TO 22 NYCRR §500.1(F) The Central New York Regional Transportation Authority (“CNYRTA”) is a public authority and a public benefit corporation. Public Authorities Law §1328(1). Defendant CNY Centro, Inc. is a public benefit subsidiary corporation of CNYRTA. Public Authorities Law §1332(5). CNYRTA has other subsidiary corporations, which include: Centro Call-A-Bus, Inc. Centro of Cayuga, Inc. Centro of Oneida, Inc. Centro of Oswego, Inc. Centro Parking, Inc. Designated Recipient Services, Inc. Intermodal Transportation Center, Inc. ii STATUS OF RELATED LITIGATION In Palladino v. CNY Centro, Inc., Onondaga County Index No. 2008-2623, the Plaintiff, Eugene Palladino, sought a declaratory judgment regarding the amount of the Plaintiff’s pension service credit. It involved the interpretation of a settlement agreement reached in 1987 to resolve a grievance by the Plaintiff. (R. 1269-82.) Supreme Court, Onondaga County (Murphy, J.) granted a prior motion by CNY Centro, Inc. (“Centro”) to dismiss the complaint, but the Appellate Division reversed and the case was remanded for further proceedings in the court below. Palladino v. CNY Centro, Inc., 70 A.D.3d 1450, 895 N.Y.S.2d 614 (4th Dept. 2010). The parties made motions for summary judgment. (R. 357.) The court below issued a declaratory judgment agreeing with the Plaintiff’s interpretation of the agreement (dated April 27, 2012 and entered on May 30, 2012). Centro filed a notice of appeal to the Appellate Division, but chose not to perfect its appeal. The case is no longer pending. The case has no impact on the legal issue before the Court of Appeals in the present appeal. iii TABLE OF CONTENTS DISCLOSURE STATEMENT PURSUANT TO 22 NYCRR §500.1(F) ........ i STATUS OF RELATED LITIGATION .............................................................. ii TABLE OF AUTHORITIES .................................................................................. v QUESTION PRESENTED ..................................................................................... 1 PRELIMINARY STATEMENT ............................................................................ 2 A. Brief Statement of the Case……………………………………….. 2 B. The Discipline of the Plaintiff for His Misrepresentation in 2007.5 C. The Discharge of the Plaintiff for His Misconduct in 2008………6 D. Proceedings in Supreme Court, Onondaga County………………8 E. Decision by the Appellate Division……………………………… .11 F. Summary of Argument…………………………………………….13 FACTS ..................................................................................................................... 16 A. Summary 18 B. The Plaintiff Committed Misrepresentation on October 5, 2007 18 C. The Plaintiff Committed Misconduct on August 19, 2008 25 POINT I................................................................................................................... 37 IN THE ABSENCE OF ACTION BY THE LEGISLATURE, THE WELL-SETTLED RULE ARTICULATED BY THIS COURT IN MARTIN V. CURRAN SHOULD NOT BE DISTURBED A. The Martin Rule……………………………………………………37 B. The Legislative History of General Associations Law §13………40 C. The Madden v. Atkins Exception Applies Only to Claims Based on Expulsion from Union Membership; It Does Not Apply to DFR Claims………………………………...45 iv D. The Martin Rule Continues to Apply to DFR Claims, Which Are Based on Intentional, Bad-Faith Conduct, Not Mere Negligence……………………………………………….48 E. The Principle of Stare Decisis Requires Adherence to the Martin Rule in the Absence of Action by the Legislature………..51 POINT II ................................................................................................................. 57 THE UNION DID NOT BREACH ITS DUTY OF FAIR REPRESENTATION TOWARD THE PLAINTIFF POINT III ............................................................................................................... 64 THE APPELLATE DIVISION CORRECTLY GRANTED SUMMARY JUDGMENT DISMISSING THE PLAINTIFF’S BREACH OF CONTRACT CLAIMS AGAINST CENTRO A. The Plaintiff Lacks Standing to Bring a Civil Action Against Centro to Enforce Rights Under the Collective Bargaining Agreement Between Centro and the Union…………65 B. Centro Had Just Cause for Disciplining and Discharging The Plaintiff………………………………………………………...67 1. The Discipline in 2007………………………………………67 2. The Discharge in 2008………………………………………69 POINT IV ................................................................................................................ 73 THIS COURT’S DISPOSITION OF THE APPEAL SHOULD LEAVE INTACT THE APPELLATE DIVISION’S SUMMARY JUDGMENT DISMISSING ALL OF THE PLAINTIFF’S CLAIMS AGAINST CENTRO AND THE UNION CONCLUSION ....................................................................................................... 77 v TABLE OF AUTHORITIES Cases Page Ahrens v. N.Y. State Public Employees Federation, 203 A.D.2d 796, 610 N.Y.S.2d 680 (3d Dept. 1994) ................................................................... 51, 58 Baker v. Board of Educ. Of W. Irondequoit School District, 70 N.Y.2d 314, 520 N.Y.S.2d 538 (1987) ......................................................................................... 59 Bennett v. Twin Parks Northeast Houses, Inc., 93 N.Y.2d 860, 688 N.Y.S.2d 94 (1999) ........................................................................................... 76 Berlyn v. Board of Education of East Meadow Union Free School District, 80 A.D.2d 572, 435 N.Y.S.2d 793 (2d Dept. 1981), aff’d, 55 N.Y.2d 912, 440 N.Y.2d 30 (1981) .............................................................................................. 66 Board of Education of Commack Union Free School District v. Ambach, 70 N.Y.2d 501, 522 N.Y.S.2d 831 (1987), cert. denied, Margolin v. Board of Education, 485 U.S. 1034, 108 S.Ct. 1593 (1988) ........................................ 65, 66 Burning v. Niagara Frontier Transit Metro System, Inc., 273 A.D.2d 830, 710 N.Y.S.2d 276 (4th Dept. 2000), lv. app. denied, 95 N.Y.2d 765, 610 N.Y.2d 680 (2000) ..................................................................................... 58, 63 Butler v McCarty, 191 Misc.2d 318, 740 N.Y.S.2d 801 (Sup. Ct. Madison Co. 2002), aff’d, 306 A.D.2d 607, 762 N.Y.S.2d 129 (3d Dept. 2003) ........................................................................................................ 47 Calkins v. Police Benevolent Assn. of N.Y. State Troopers, Inc., 55 A.D.3d 1328, 864 N.Y.S.2d 655 (4th Dept. 2008), lv. app. denied, 11 N.Y.3d 714, 873 N.Y.S.2d 532 (2009) ............................................................... 62 Cenven, Inc. v Bethlehem Steel Corp., 41 N.Y.2d 842, 393 N.Y.S.2d 700 (1977) ......................................................................................... 52 Civil Service Bar Assn. v. City of N.Y., 64 N.Y.2d 188, 485 N.Y.S.2d 227 (1984) ..................................................................................... 4, 62 vi Civil Service Employees Assn. v. PERB, 132 A.D.2d 430, 522 N.Y.S.2d 709 (3d Dept. 1987), aff’d, 73 N.Y.2d 796, 537 N.Y.S.2d 22 (1988) ............................................................................... 51, 58, 59 Cunningham v Nadjari, 39 N.Y.2d 314, 383 N.Y.S.2d 590 (1976) ........................ 52 Duane Reade, Inc. v. Local 338 Retail, Wholesale, Department Store Union, 17 A.D.3d 277, 794 N.Y.S.2d 25 (1st Dept. 2005), lv. app. denied, 5 N.Y.3d 797, 801 N.Y.S.2d 560 (2005) ................................................................. 47 Engquist v. Oregon Dept. Of Agriculture, 533 U.S. 591, 128 S.Ct. 2146 (2008) ................................................................................. 11, 74, 75 Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 704 N.Y.S.2d 177 (1999) ......................................................................................... 76 Garvin v. N.Y. State Public Employment Relations Board, 168 A.D.2d 446, 562 N.Y.S.2d 565 (2d Dept. 1990), lv. app. denied, 77 N.Y.2d 805, 568 N.Y.S.2d 913 (1991) ........................................................ 51, 58 Goodman v. Port Authority of New York and New Jersey, No. 10-CV-8352, 2011 WL 3423800 (S.D.N.Y. August 4, 2011) (Sweet, J.) ..................................... 47 Grahame v. Rochester Teachers Assn., 262 A.D.2d 963, 692 N.Y.S.2d 53 (4th Dept. 1999), appeal dismissed, 94 N.Y.2d 796, 700 N.Y.S.2d 428 (1999) ..... 50 Great Northern Insurance Co. v Interior Construction Corp., 7 N.Y.3d 412, 823 N.Y.S.2d 765 (2006) ......................................................................................... 52 Hoesten v. Best, 34 A.D.3d 143, 821 N.Y.S.2d 40 (1st Dept. 2006) ...................... 50 Jackson v. Regional Transit Service, 54 A.D.2d 305, 388 N.Y.S.2d 441 (4th Dept. 1976) ....................................................................................................... 51 Knight v. Drye, Civil Action No. 07-3097, 2009 WL 704140 (E.D.Pa. March 13, 2009) (Robreno, J.), aff’d, 374 Fed.Appx. 280, 2010 WL 1473784 (3d Cir. 2010), cert. denied, U.S. , 131 S.Ct. 463 (2010) ................................................................................................ 61 vii Lahendro v. New York State United Teachers Assn., 88 A.D.3d 1142, 931 N.Y.S.2d 724 (3d Dept. 2011) .............................................................. 37, 47, 53 Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633 (1958) ............ 2, 45, 46, 47, 48 Mamorella v. Derkasch, 276 A.D.2d 152, 716 N.Y.S.2d 211 (4th Dept. 2000) ..... 63 Martin v. Curran, 303 N.Y. 276, 101 N.E.2d 683 (1951).................................passim Mazurajtis v. Maknawyce, 93 Misc. 337, 157 N.Y.S. 151 (Sup. Ct. N.Y. Co. 1916) ......................................................................................... 42 McCabe v. Goodfellow, 133 N.Y. 89, 30 N.E. 728 (1892) ............................... 39, 42 McGovern v. Int’l. Brotherhood of Teamsters, 447 F.Supp. 368 (E.D.Pa 1978) ... 62 Mellon v. Benker, 186 A.D.2d 1020, 588 N.Y.S.2d 482 (4th Dept. 1992) .......................................................................................... 51, 58, 63 Metropolitan Opera Assn., Inc. v Local 100, Hotel Employees and Restaurant Employees Int’l Union, No. 00-Civ.-3613 (LAP), 2004 WL 1943099, 175 L.R.R.M. (BNA) 2870 (S.D.N.Y. Aug. 27, 2004) (Preska, J.) ........................ 54 Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 N.Y.2d 57, 268 N.Y.S.2d 18 (1966) ........................................................................................... 75 Morrissey v. National Maritime Union of America, 544 F.2d 19 (2d Cir. 1976) ........................................................................................................... 47 Palladino v. CNY Centro, Inc., 70 A.D.3d 1450, 895 N.Y.S.2d 614 (4th Dept. 2010) ........................................................................................................ ii Palladino v. CNY Centro, Inc., 101 A.D.3d 1653, 956 N.Y.S.2d 742 (4th Dept. 2012), lv. app. granted, 20 N.Y.3d 861, 964 N.Y.S.2d 84 (2013) ......... 13 People v. Rudolph, ___ N.Y.3d ___, 2013 N.Y. Slip Op. 04840, 2013 WL 3213329 (June 27, 2013) .......................................................................................... 52 Piniewski v. Panepinto, 267 A.D.2d 1087, 701 N.Y.S.2d 215 (4th Dept. 1999) .... 50 viii Rine v. Higgins, 244 A.D.2d 963, 665 N.Y.S.2d 165 (4th Dept. 1997) .................. 66 Rudman v. Cowles Communications, Inc., 30 N.Y.2d 1, 30 N.Y.S.2d 33 (1972) ............................................................................................. 76 Saint v. Pope, 12 A.D.2d 168, 211 N.Y.S.2d 9 (4th Dept. 1961) ............................ 46 Salemeh v Toussaint ex rel. Local 100 Transportation Workers Union, 25 A.D.3d 411, 810 N.Y.S.2d 1 (1st Dept. 2006).................................................... 49 In re Schinasi’s Will, 277 N.Y. 252, 14 N.E.2d 58 (1938)...................................... 52 Schouten v. Alpine, 215 N.Y. 22, 109 N.E. 244 (1915) .......................................... 53 Scopo v. Laborers’ Int’l Union of North America, No. 11-CV-3991 (CBA), 2013 WL 837293 (E.D.N.Y. March 6, 2013) (Amon, J.) ........................................ 47 Scott v. Machinists Automotive Trades District Lodge No. 190, 827 F.2d 589 (9th Cir. 1987) .................................................................................. 62 Smiley v. Daimler Chrysler, 589 F.Supp.2d 471 (D.Del. 2008) ............................. 62 Smith v. Reeves, 96 A.D.3d 1550, 946 N.Y.S.2d 750 (4th Dept. 2012) ................. 75 Smith v. Sipe, 67 N.Y.2d 928, 502 N.Y.S.2d 134 (1986), reversing 109 A.D.2d 1034, 487 N.Y.S.2d 153 (3d Dept. 1985) ...................................... 58, 59 Torres v. Lacey, 3 A.D.2d 998, 163 N.Y.S.2d 451 (1st Dept. 1957) ...................... 50 Matter of Trainosky v. New York State Dept. of Taxation & Finance, 105 A.D.2d 525, 481 N.Y.S.2d 473(3d Dept. 1984) ............................................... 59 Transport Workers Union (Jain), 39 PERB ¶3019 (2006) ...................................... 59 United Federation of Teachers (White), 11 PERB ¶4551 (1978) ............................ 60 Walsh v. Torres-Lynch, 266 A.D.2d 817, 697 N.Y.S.2d 434 (4th Dept. 1999) .......................................................................................... 12, 37, 46 ix Westchester County v. Westchester County Federation of Labor, 129 N.Y.S.2d 211 (Sup. Ct. Westchester Co. 1953) ............................................... 54 Wolfson v. Preventative Medicine Clinical Services, 26 A.D.3d 751, 809 N.Y.S.2d 322 (4th Dept. 2006) ......................................................................... 66 Yoonessi v. State of New York, 289 A.D.2d 998, 735 N.Y.S.2d 667 (4th Dept. 2001), lv. app. denied, 98 N.Y.2d 609, 746 N.Y.S.2d 693 (2002), cert. denied, 537 U.S. 1047, 123 S.Ct. 602 (2002) ............................... 62, 66 Zanghi v. Laborers’ Int’l. Union of North America, 8 A.D.3d 1033, 778 N.Y.S.2d 607 (4th Dept. 2004) lv. app. denied, 4 N.Y.3d 703, 790 N.Y.S.2d 650 (2005) ......................................................................................... 12 Statutes U.S. Constitution, Amendment 1 ............................................................................. 11 U.S. Constitution, Amendment 5 ............................................................................. 11 U.S. Constitution, Amendment 14 ..................................................................... 11, 74 42 U.S.C. §1983 ............................................................................................. 8, 10, 74 Civil Practice Law and Rules §1025 ........................................................................ 44 Civil Practice Law and Rules §5612(a) ................................................................... 76 Civil Practice Law and Rules §5613 ........................................................................ 76 Civil Service Law §204.2 .......................................................................................... 4 Code of Civil Procedure §1919 .............................................................. 39, 41, 42, 43 General Associations Law §12 .......................................................................... 43, 44 General Associations Law §13 ............... 2, 38, 39, 40, 41, 42, 43, 44, 45, 48, 53, 55 x General Associations Law §16 ................................................................................ 43 Public Authorities Law §1328(1)................................................................................ i Public Authorities Law §1332(5)............................................................................... i Chapter 258 of the Laws of 1849 ............................................................................. 40 Chapter 455 of the Laws of 1851 ............................................................................. 41 Chapter 178 of the Laws of 1880 ............................................................................. 41 Chapter 34 of the Laws of 1909 ............................................................................... 42 Chapter 518 of the Laws of 1961 ............................................................................. 44 Chapter 308 of the Laws of 1962 ............................................................................. 45 Rules and Regulations 22 NYCRR §500.1(f) .................................................................................................. i Other 6A N.Y.Jur.2d, Associations and Clubs §39 ........................................................... 39 1 QUESTION PRESENTED Whether a plaintiff who commences an action for breach of the duty of fair representation against a labor union which is an unincorporated association must plead and prove that all of the members of the union authorized or ratified the conduct which is the basis for the plaintiff’s claim. The Appellate Division, Fourth Department answered this question in the affirmative. The Appellate Division followed this Court’s decision in Martin v. Curran, 303 N.Y. 276, 101 N.E.2d 683 (1951). In that case, the Court of Appeals said that a change in the law on actions against associations could only be made by the Legislature, not by the courts. Defendant Centro respectfully submits that the judgment of the Appellate Division should be affirmed. Since Martin v. Curran was decided, the State Legislature has not changed the law, and nothing else has changed which would justify departure from the principle of stare decisis in this case. 2 PRELIMINARY STATEMENT A. Brief Statement of the Case In an action against an unincorporated association, the plaintiff must plead and prove that all of the members of the association authorized or ratified the conduct upon which the complaint is based. This requirement applies to various types of claims, including intentional torts. It has been the law in New York State for many years. Since 1920, it has been reflected in §13 of the General Associations Law. That statute permits an action against an association, if the plaintiff could maintain an action “against all the associates”. The Court of Appeals held in Martin v. Curran, 303 N.Y. 276, 101 N.E.2d 683 (1951), that this rule applies to claims against labor unions that are unincorporated associations. The Court explained that only the Legislature, not the courts, has the power to decide whether to change this rule. That particular case dealt with a libel claim. Courts in New York State have consistently applied the Martin rule to intentional tort claims against unions. Of particular significance to the present appeal, New York courts have consistently applied this rule to claims that a union breached its duty of fair representation (“DFR”) to employees represented by the union. In Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633 (1958), the Court of Appeals recognized a limited exception to the Martin rule for claims based on 3 expulsion from membership in a union. The Court did not say that this exception applies to DFR claims. Indeed, there are no reported decisions of New York State courts holding that any exception to the Martin rule encompasses DFR claims. The only unreported decision of which Centro’s attorneys are aware is that of Supreme Court, Onondaga County in this case. The Appellate Division, Fourth Department properly reversed, based on Martin and other settled precedent. The present case is an action by the Plaintiff against his former employer and union, in which the Plaintiff asserts DFR claims against the union, as well as breach of contract claims against the employer and certain other claims. The Plaintiff contends that this Court should sweep away Martin and over sixty years of consistent precedent since Martin was decided, as well as the many years of prior precedent upon which the Martin decision was based. Centro respectfully submits that there has been no change in the law, or any other change, which warrants departure from the settled principle of stare decisis in this case. The Plaintiff, Eugene Palladino, was formerly employed by Defendant CNY Centro, Inc. (“Centro”) as a bus operator (driver). He was a member of a collective bargaining unit represented by Defendant Amalgamated Transit Union, Local 580 (the “Union”). Centro and the Union are parties to a collective bargaining agreement that sets forth the terms and conditions of employment of 4 employees in the bargaining unit. The agreement that was in effect during the events which gave rise to this action had a term from November 1, 2006 through October 31, 2009, and was signed in June 2007. (R. 543-631.) The Union is the exclusive collective bargaining representative of the employees in the unit. Civil Service Law §204.2. As such, it has the duty to fairly represent all of the employees in the unit. Civil Service Bar Assn. v. City of N.Y., 64 N.Y.2d 188, 485 N.Y.S.2d 227 (1984). The Union is an unincorporated association. (R. 63.) The Plaintiff brought this civil action against Centro, and against the Amalgamated Transit Union, Local 580 and its former Business Agent, Charles Watson (collectively referred to herein as the “Union”). The Plaintiff alleged a breach of the collective bargaining agreement between Centro and the Union. He also alleged that the Union breached its duty of fair representation toward him. The Appellate Division, Fourth Department granted summary judgment in favor of Centro and the Union. The Appellate Division’s memorandum opinion explained that the Plaintiff failed even to plead that the conduct of the Union, an unincorporated association, was authorized or ratified by all of the members of the association. This mandated dismissal of the Plaintiff’s DFR claims under Martin v. Curran and its progeny. (R. 1446-48.) 5 This Court granted leave to appeal, to consider whether the Martin rule applies to DFR claims against a labor union. B. The Discipline of the Plaintiff for His Misrepresentation in 2007 The Plaintiff was scheduled to drive a bus for Centro on October 5, 2007. That morning, he called Centro and told a dispatcher that he had been called out of town the night before and would not be back in time to do his run. His call was not truthful in several ways. The Plaintiff did not work for Centro that day because he was driving a charter bus for another employer, Quality Coach Lines. The Plaintiff had planned in advance to go on the trip as a passenger, if not as the driver. The Plaintiff had known that he would be driving the Quality Coach trip longer than the night before. He had not been “called out of town” that night. Also, he was still “in town” when he called Centro. Centro investigated the circumstances. After meeting with the Plaintiff and his Union representatives several times, Centro determined that the Plaintiff had engaged in misrepresentation. Centro suspended the Plaintiff for five days without pay, and put him on probation with respect to misrepresentation. He was warned in writing that any further incidents of misrepresentation would result in the termination of his employment. The Plaintiff filed a grievance and the Union represented him. However, he did not cooperate with the Union’s investigation of his grievance. Based on the information available to the Union, and its Executive 6 Board’s evaluation of the merits of the grievance, it withdrew its demand for arbitration. On October 31, 2008, the Plaintiff commenced the action with Index No. 2008-8650 against Centro and the Union. His amended complaint alleged that Centro and the Union were liable for breach of contract, and that the Union breached its duty of fair representation, in connection with the discipline of the Plaintiff for misrepresentation. (R. 365-86.) C. The Discharge of the Plaintiff for His Misconduct in 2008 On August 19, 2008, the Plaintiff committed a variety of rules violations. That day, he was assigned to drive a “Call-a-Bus”, providing special service to Centro customers who are senior citizens, or persons with disabilities or medical needs. In the public transit industry, timeliness is commonly known to be of prime importance. In the workplace at Centro, this is especially so for Call-a-Bus assignments. The Plaintiff was late in leaving Centro property to start his bus run. Before he left, he failed to perform the required pre-trip safety inspection of his bus and its wheelchair lift. On his driver’s manifest, he wrote down a time of departure that was at least ten minutes earlier than the actual time. He wrote comments on his manifest that were supposed to be brought to Centro’s attention in other ways, despite having been directed not to write them on his manifest. 7 The Plaintiff was late to pick up his first customer. While he was on his way to pick up the customer, he radioed Centro. He told a dispatcher that he was running about fifteen minutes late, and blamed it on being delayed by construction on Thompson Road. This was not truthful. The real reason that the Plaintiff did not pick up the passenger on time was that he had been late in starting his bus run. Therefore, Centro considered his statement to be misrepresentation. Centro investigated the events of August 19, 2008, and provided the Plaintiff and his Union representatives with written notice of charges. Centro had numerous meetings with the Plaintiff and his Union representatives, culminating in a review for employment termination hearing. Centro considered all of the circumstances, the Plaintiff’s explanation of his actions, and the fact that the Plaintiff was already on probation for his prior misrepresentation. Centro then terminated the Plaintiff’s employment, following the principles of progressive employment discipline. Before the review for termination hearing that resulted in Centro’s decision to terminate the Plaintiff’s employment, the Union advocated on his behalf. The Union negotiated with Centro for a settlement which would have enabled the Plaintiff to keep his job with Centro. However, the Plaintiff refused to agree to settle. 8 The Plaintiff filed a grievance and the Union represented him in the grievance procedure. There were further, unsuccessful settlement discussions. The Union’s Executive Board evaluated the merits of the Plaintiff’s case, and decided not to take the grievance to an arbitration hearing. On January 20, 2009, the Plaintiff commenced the action against Centro and the Union with Index No. 2009-0473. His amended complaint alleged that Centro and the Union were liable for breach of contract, that Centro was liable for wrongful discharge, and that the Union breached its duty of fair representation, in connection with the termination of his employment. The Plaintiff also asserted a claim against Centro and the Union under 42 U.S.C. §1983. (R. 415-41.) D. Proceedings in Supreme Court, Onondaga County As stated above, the Plaintiff commenced two actions in Supreme Court, Onondaga County challenging his discipline in 2007 and discharge in 2008. They were consolidated by order of the court. (R. 477-99.) The Plaintiff alleged that Centro breached the collective bargaining agreement between Centro and the Union. His complaint asserted a cause of action against Centro for “wrongful discharge”. The Plaintiff also alleged that the Union breached its duty of fair representation (“DFR”) toward him. Finally, the Plaintiff alleged that Centro and the Union were liable under 42 U.S.C. §1983, based on deprivation of due process and equal protection rights. 9 The parties completed extensive discovery. The Union and Centro then made motions for summary judgment, seeking dismissal of all of the Plaintiff’s claims in both of his complaints. (R. 60-351, 352-762.) The Plaintiff served papers in opposition to the Defendants’ motions. The Union and Centro served reply papers. (R. 1379-91, 1392-1433.) The Plaintiff’s papers included affidavits from the Plaintiff (R. 763-800) and his attorney, Robert Louis Riley, Esq. (R. 801-25.) Attached as exhibits were paper copies of most of the exhibits from the depositions, or at least portions of some of them. (R. 826-1378.) The Plaintiff also submitted several CDs and DVDs. A few of them were electronic copies of deposition exhibits that were in audio or video format (i.e., recordings of phone calls and a bus video). One was of the audio of secret recordings that the Plaintiff had made of meetings and conversations with Centro and Union officials, and the transcripts that he had prepared from them. The Plaintiff also submitted a CD with copies of the transcripts of all of the depositions except his own. Centro corrected this omission by submitting the transcript of the Plaintiff’s deposition on a CD. (See R.1394, 1443.) These electronic exhibits accompany the printed record on appeal. (See R. 930, 970, 994, 996, 1015, 1436-42.) 10 There were depositions of 23 witnesses in this case, which took place on 25 days. In response to the Defendants’ motions for summary judgment, the Plaintiff “dumped” almost the entire record of the depositions on the court, plus additional materials. However, the Plaintiff failed to identify the specific parts of the record that were relevant to his opposition to the motions. In their motions for summary judgment, Centro and the Union sought dismissal of all of the Plaintiff’s claims. On March 15, 2012, Justice Murphy rendered a decision from the bench, granting the motions in part and denying them in part. (R. 15-57.) It was followed by a written Order dated April 11, 2012 and entered in the office of the Onondaga County Clerk on April 12, 2012. (R. 11-14.) The court denied Centro’s motion to dismiss the Plaintiff’s breach of contract claims against Centro. However, the court dismissed the breach of contract claims to the extent that they were against the Union. The court denied the Union’s motion to dismiss the Plaintiff’s DFR claims. The court agreed that there is no separate claim for “wrongful discharge” under New York State law. It granted summary judgment dismissing that claim against Centro. Justice Murphy dismissed the Plaintiff’s federal civil rights claims against the Union, since the Union is a private party and claims under 42 U.S.C. §1983 require “state action”. 11 The court granted Centro’s motion for summary judgment on the Plaintiff’s Due Process claim (under the 1st and 5th Amendments to the U.S. Constitution). It dismissed the Plaintiff’s claim that he was not given adequate due process in connection with his termination, and that Centro fired him in retaliation for his other lawsuit over his pension service credit. The Plaintiff did not appeal or cross- appeal to the Appellate Division from this aspect of the judgment of the lower court. Therefore, Centro respectfully submits that it is improper for the Plaintiff to continue to make assertions about these issues in his appeal to this Court. The court denied Centro’s motion for summary judgment on the Plaintiff’s Equal Protection claim (under the 14th Amendment to the U.S. Constitution). Centro argued that an Equal Protection Clause claim requires that the Plaintiff allege and prove that he is part of an identifiable class, such as a racial group. The U.S. Supreme Court has held that there is no such thing as a “class of one” in an employment case. Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 128 S.Ct. 2146 (2008). Nevertheless, Justice Murphy said that the Plaintiff could proceed with his claim, based on his being a “class of one”. (R. 54-55.) E. Decision by the Appellate Division Centro and the Union appealed to the Appellate Division, Fourth Department from those parts of the order of Supreme Court which denied them 12 summary judgment on some of the Plaintiff’s claims. (R. 3-8.) The parties stipulated to consolidate the appeals. (R. 9-10.) The Plaintiff did not file a notice of appeal or cross-appeal. On December 12, 2012, the Appellate Division unanimously reversed the order of Supreme Court, Onondaga County insofar as appealed from, on the law, granted the Defendants’ motions for summary judgment in their entirety, and dismissed the Plaintiff’s complaints. (R. 1446-48.) The Appellate Division explained that the Plaintiff failed even to plead that the conduct of the Union, a voluntary unincorporated association, was authorized or ratified by the entire membership of the association. The court held that the Plaintiff’s contention that the Union breached its DFR was “fatally defective”. The Appellate Division cited Martin v. Curran, 303 N.Y. 276, 101 N.E.2d 683 (1951); Zanghi v. Laborers’ Int’l. Union of North America, 8 A.D.3d 1033, 778 N.Y.S.2d 607 (4th Dept. 2004), lv. app. denied, 4 N.Y.3d 703, 790 N.Y.S.2d 650 (2005); Walsh v. Torres-Lynch, 266 A.D.2d 817, 697 N.Y.S.2d 434 (4th Dept. 1999). In light of this conclusion, the Appellate Division’s memorandum decision did not expressly address the Defendants’ remaining contentions. However, the Appellate Division unanimously reversed the order insofar as appealed from, on the law, granted the summary judgment motions in their entirety, and dismissed the amended complaints. Thus, the Appellate Division determined that Centro and the 13 Union were entitled to summary judgment dismissing all of the Plaintiff’s claims. Palladino v. CNY Centro, Inc., 101 A.D.3d 1653, 956 N.Y.S.2d 742 (4th Dept. 2012). This Court granted leave to appeal, 20 N.Y.3d 861, 964 N.Y.S.2d 84 (2013). F. Summary of Argument The only question of law directly raised by the present appeal, as framed by the question presented in the Plaintiff’s motion for leave to appeal and brief, is whether the Plaintiff may maintain DFR claims without the pleading and proof required by the Martin rule. The Appellate Division properly decided this issue in accordance with the long-settled law of this State. The Appellate Division also correctly dismissed all of the other remaining claims against the Defendants. Therefore, Centro respectfully submits that the judgment of the Appellate Division should be affirmed. There has been no relevant change in the law since this Court decided Martin v. Curran. Therefore, Centro respectfully submits that the Court should adhere to the rule articulated in Martin, in accordance with the separation of powers recognized in Martin and the principle of stare decisis. In the present case, the Plaintiff did not present any evidence that the individual members of the Union authorized or ratified the conduct that forms the basis for the Plaintiff’s DFR claims against the Union. The Plaintiff failed to even 14 plead this as an allegation in either of his complaints. Therefore, Centro respectfully submits that the Appellate Division correctly dismissed the Plaintiff’s DFR claims as a matter of law. Moreover, regardless of whether the Plaintiff is required to prove ratification by the members of the Union, under the circumstances of this case, the Union did not breach its DFR toward the Plaintiff. The Plaintiff’s only remedy against Centro was through the grievance procedure in the collective bargaining agreement. The law is settled that an employee lacks standing to bring his own private breach of contract action against his employer, unless he proves that his union breached its duty of fair representation. The Plaintiff failed to submit facts showing that the Union breached its DFR. Moreover, even if the Plaintiff could bring a breach of contract claim against Centro, the undisputed facts show that the Plaintiff was guilty of the charges against him. Centro had just cause to discipline and discharge him. In summary, Centro respectfully submits that the Court of Appeals should adhere to the Martin rule as applied to DFR claims against unions that are unincorporated associations. Centro respectfully requests that the Court affirm the judgment of Appellate Division. The summary judgment dismissing all of the Plaintiff’s claims against Centro and the Union should not be disturbed. 15 Even if this Court decides that an exception to the Martin rule applies to DFR claims, Centro respectfully submits that, in the present case, the Union is still entitled to summary judgment dismissing the Plaintiff’s DFR claims on the merits. Consequently, the Plaintiff may not maintain his breach of contract claims against Centro, as a matter of law. If the Court believes that it is necessary to remit this case to the Appellate Division, Centro respectfully requests that the court direct the Appellate Division to decide itself whether Centro and the Union are entitled to summary judgment on the other grounds raised by them, on the existing well-developed record, and not to remand the case to Supreme Court, Onondaga County. 16 FACTS A. Summary The facts in the record conclusively demonstrate that Centro and the Union were entitled to summary judgment dismissing all of the Plaintiff’s claims as a matter of law. Despite the voluminous nature of the record, the material facts are actually very simple and not in dispute. In summary, it is undisputed that: 1. On October 5, 2007, the Plaintiff called Centro and said: I am not going to make my run today. I was called out of town last night and I’m not going to make it back in time. 2. The Plaintiff had not actually been called out of town the night before October 5, 2007. He had known in advance that he would be on a trip to Washington, D.C. with his wife, and had been unable to get October 5 off. He was still in the Syracuse area when he called Centro. 3. As a result of this incident, the Plaintiff was put on probation for misrepresentation. Centro warned him in writing that any further incidents of misrepresentation would result in termination from employment. 4. The Plaintiff failed to cooperate with the Union in its investigation of his grievance over the 2007 discipline. 17 5. On August 19, 2008, the Plaintiff failed to complete the required pre- trip safety inspection of the bus and its wheelchair lift, and pulled out late to start his bus run. 6. On August 19, 2008, on his way to pick up his first customer, the Plaintiff radioed Centro and said: I’m down about fifteen minutes, I was delayed due to construction on Thompson Road. 7. On August 19, 2008, the Plaintiff was not actually delayed for fifteen minutes due to construction on Thompson Road. 8. The Union negotiated a tentative agreement with Centro which would have allowed the Plaintiff to keep his job, even before Centro decided to terminate his employment. However, the Plaintiff refused to accept the proposed agreement, and Centro terminated his employment. 9. The Plaintiff filed grievances challenging his discipline and discharge. The Union’s Executive Board decided not to pursue the Plaintiff’s grievances to arbitration. The members of the Executive Board articulated good faith reasons for these decisions, based on their evaluation of the merits of the case and the Plaintiff’s conduct. Despite a lot of bluster and distraction, nowhere in any of the Plaintiff’s papers did he identify any evidence rebutting any of these material facts. Indeed, 18 the Plaintiff admitted engaging in much of the above conduct. He did not come forward with any evidence that the decisions of the Executive Board were arbitrary, discriminatory, or made in bad faith. It is clear that the Plaintiff committed an act of misrepresentation on October 5, 2007. He was disciplined and warned that any further misrepresentation would result in the termination of his employment. After being warned, on August 19, 2008, the Plaintiff again engaged in misrepresentation to his employer, besides committing various other rule violations. The Plaintiff’s misconduct interfered with Centro’s mission, as a public transportation authority, to provide safe and timely transportation to the public. Under these circumstances, Centro had just cause to terminate the Plaintiff’s employment. Moreover, the Union evaluated the Plaintiff’s grievances and had a good-faith basis for deciding not to pursue them to arbitration. B. The Plaintiff Committed Misrepresentation on October 5, 2007 The Plaintiff had made arrangements to take off Monday, October 8, 2007, which was Columbus Day. (R. 780.) He was scheduled to work for Centro on Friday, October 5, 2007. He had not obtained authorization to take off that day through one of the permissible ways (a day off, vacation or floating holiday). However, unbeknownst to Centro, the Plaintiff had made definite plans, in 19 advance, to be absent from work on October 5, so he could go on a trip to Washington, D.C. from October 5-8, 2007. On Friday, October 5, 2007, at about 8:20 A.M., the Plaintiff called in to Centro dispatch to advise that he would not be at work that day as scheduled. The Plaintiff said: I am not going to make my run today. I was called out of town last night and I’m not going to make it back in time. (R. 641. The audio recording of this is included in Deposition Exhibits P-20 and P-34. They are on CDs at R. 1438, 1439.) One of the deposition exhibits is a transcript of this conversation. (R. 1259.) It is undisputed that the reference in the transcript to “didn’t make it back in time” is inaccurate, and that “I’m not going to make it back in time” accurately reflects what the Plaintiff actually said. (R. 769-70, 1407.) A supervisor, KC Martin, heard the dispatchers talking about the Plaintiff’s call-in. Martin listened to a recording of the call-in. He suspected that the reason that the Plaintiff would not be driving for Centro that day was that the Plaintiff was working for another employer. It was known that the Plaintiff also worked part-time for Quality Coach Lines. There was no Centro rule against drivers working for another employer. However, the problem with the Plaintiff’s conduct was that, after failing to obtain 20 time off using Centro’s established procedures, the Plaintiff misrepresented the circumstances of his not working for Centro as scheduled, so that he could take a pre-planned trip with his wife. Martin called Quality Coach to verify whether or not the Plaintiff was working for Quality Coach that day. The secretary (who was the daughter of one of the owners) told Martin that he was. Martin then went to Quality Coach to talk to Steve Bailey, one of the owners. Bailey told Martin that the Plaintiff was on a trip from Syracuse to Washington, D.C., that he had left that morning, and that he was scheduled to return on Monday, October 8, 2007. Bailey said that the Plaintiff had not received this work the day before. This directly contradicted what the Plaintiff had said when he had called in to Centro. (R. 745-48.) By calling Centro dispatch and making his statement, the Plaintiff avoided working his assigned bus run for Centro. It was later confirmed that the Plaintiff and his wife had been planning for some time to take a trip to Washington that weekend via Quality Coach charter bus. The Plaintiff then obtained work as the driver for the trip, and Quality Coach paid his expenses. 21 Martin passed this information on to Centro management personnel. However, Martin did not make the decision to discipline the Plaintiff. (R. 746, 748.) Centro’s Manager of Labor Relations, Gary Nordheim, investigated the incident. As part of the investigation, he met with the Plaintiff and his Union representative several times. (See, e.g., R. 673-74.) The Plaintiff refused to provide Centro with information about the circumstances of his absence from work. Nordheim determined that the Plaintiff had not been called out of town the night before October 5, 2007, and that the Plaintiff had misrepresented the circumstances surrounding his absence. Centro’s Rules and Regulations prohibit misrepresentation, as follows: Misrepresentation - If an employee willfully makes a false statement or representation for the purpose of obtaining or influencing the determination of any benefit, payment or preferential treatment, that employee has committed a deliberate act with the intent to defraud. False statements of representation, with regard to work records and documents, medical insurance, health benefits, medical history, or any information pertaining to an employee’s skill, qualification or work status, shall constitute a serious misconduct. (R. 656.) 22 Under the discipline code in Centro’s Rules and Regulations, misrepresentation is a Class I infraction. The suggested disciplinary penalty is to be determined based on the circumstances of the offense. (R. 670.) Nordheim met with the Plaintiff and the President of the Union, Tyrone Burke, on October 15, 2007. Nordheim documented the meeting in a personnel report, which they all signed. The potential disciplinary penalties listed in Section 3.01 of the collective bargaining agreement included suspension and probation. (R. 551.) Accordingly, the Plaintiff was suspended for five days without pay. He was also placed on lifetime or indefinite probation regarding any further occurrences of the same kind of incident, misrepresentation. The Plaintiff was notified in writing: Further, Mr. Palladino will be placed upon a lifetime probation. Another incident of misrepresentation will result in termination from employment. (R. 675-77.) The Plaintiff filed a grievance over his discipline for misrepresentation. Centro’s Senior Vice President of Corporate Operations, John Renock, met with the Plaintiff and his Union representative at the second step of the grievance procedure. Renock gave the Plaintiff the opportunity to provide additional information. However, the Plaintiff did not answer Renock’s questions about the circumstances of his call-in on October 5, 2007, and refused to provide any 23 additional information. Based on the information available to Centro, Renock denied his grievance. (R. 635.) Under Section 2.08 of the collective bargaining agreement, the Union may, if it chooses, pursue grievances involving discharge or substance abuse to arbitration. Section 2.07 provides a different track for other types of grievances, including an appeal to a tripartite Grievance Review Board. However, if a mediator is not made available to serve on the Grievance Review Board, Section 2.09 provides that arbitration is the applicable procedure. (R. 548-550, 1422-23.) The letter from Watson to the Plaintiff dated November 19, 2007 clearly and accurately stated this. (R. 971.) Accordingly, the Union appealed the Plaintiff’s grievance to arbitration. Centro and the Union selected a neutral arbitrator to hear and decide the case. A hearing was scheduled for July 14, 2008. The Union investigated the facts surrounding the Plaintiff’s grievance. However, the Plaintiff refused to cooperate with the Union’s investigation. Watson went to Quality Coach in an attempt to meet with Bailey and obtain documents. The Union reviewed information from Centro showing that, on or about September 27, 2007, the Plaintiff had changed his Centro work schedule to be off on Monday, October 8, 2007, but that he had been unsuccessful in obtaining Friday, October 5, 2007 off. That was eight days before October 5, not the night 24 before. Watson listened to the audio tape of the Plaintiff’s conversation with the dispatcher. It confirmed Centro’s allegation that the Plaintiff had engaged in misrepresentation. (R. 233-34.) As part of their investigation of the facts and preparation for the arbitration hearing, Watson and an attorney for the Union wanted to speak with Bailey and with Charles Simpson (Director of Campus Activities for SUNY Upstate Medical University, who had chartered the bus for the trip to Washington). They asked the Plaintiff to facilitate this. However, the Plaintiff did not want the Union to speak with them and refused to help. (R. 234-35.) On May 22, 2008, the Union advised the Plaintiff in writing that, if he failed to cooperate with the Union’s investigation, the Union could decide not to pursue the grievance to arbitration. (R. 235, 248.) The Plaintiff still failed to cooperate with the Union. At a meeting on June 27, 2008, the Union’s Executive Board discussed the Plaintiff’s grievance. There was a consensus that the Plaintiff had, in fact, committed misrepresentation. The Executive Board also considered the Plaintiff’s failure to cooperate with the Union, by refusing to assist in the Union’s efforts to speak with two witnesses. The Executive Board unanimously voted to withdraw the grievance for these reasons. There was no discussion of withdrawing the grievance for any improper reason. (R. 65, 235, 339, 344, 349.) On June 30, 2008, 25 the Union notified the arbitrator and Centro that it was withdrawing the grievance and would no longer seek to arbitrate it. Discovery in this action confirmed that Centro had correctly determined that the Plaintiff had committed misrepresentation. When the Plaintiff called Centro on October 5, 2007, he told a dispatcher that he had been called out of town the night before. However, at his deposition, the Plaintiff admitted that, when he made the call, “I believe I was still in town”. (R. 500.) The Plaintiff’s wife, Kathleen Palladino, testified at her deposition that she and the Plaintiff had been planning to travel to Washington for several months before October 5. She also testified that she had made the arrangements for them to go on the trip more than a week before they left. (R. 501-03.) C. The Plaintiff Committed Misconduct on August 19, 2008 Centro provides transportation services to the public. It is critically important that drivers follow their schedules so they pick up passengers on time. This is especially so with respect to customers who participate in the Call-a-Bus paratransit program. On August 19, 2008, the Plaintiff was driving a Call-a-Bus vehicle. He was responsible for transporting customers who had a need for special transportation because they were elderly, disabled or both. On August 19, 2008, the Plaintiff was scheduled to report to work at 11:50 A.M. He was then required to conduct a pre-trip safety inspection of his bus and 26 its wheelchair lift. He was scheduled to leave Centro property to begin driving his run at 12:00 noon. However, it is undisputed that he did not leave until after his scheduled departure time. A supervisor, Lettie Cardona, issued the Plaintiff a violation ticket for late pullout and unnecessary delay. She reported that the Plaintiff was still in the drivers’ room, talking to another driver, at 12:02 P.M. (R. 678.) This was called to the attention of Nordheim, who investigated the matter. Cardona confirmed that, when she had seen the Plaintiff in the drivers’ room, she had looked at the clock on the wall and it said 12:02. (R. 643.) Nevertheless, even if this one piece of information was not accurate, other evidence, including admissions by the Plaintiff, unequivocally proved that the Plaintiff was late starting his bus run. Before beginning a run, Call-a-Bus drivers are required to complete a safety inspection of the bus. They are also required to test the wheelchair lift of the vehicle to make sure that it is in a safe and working condition. By his own admission, the Plaintiff failed to take these required safety precautions before he drove off Centro property. (R. 507-10.) While the Plaintiff was on his way to pick up his first customer, he radioed dispatch to report that he was running late. He told the dispatcher: I’m down about fifteen minutes, I was delayed due to construction on Thompson Road. 27 (R. 646.) The audio recording of this is included in the bus video, Deposition Exhibits P-36 and P-48, on the DVDs at R. 1440, 1441. The Plaintiff’s transmission to Centro begins around what is marked as 9:32 A.M. on the video.) The part of Thompson Road involved in this case is in the City of Syracuse and the Town of DeWitt in Onondaga County. Cardona also directly observed part of the Plaintiff’s bus run that day, during which he was late picking up several customers. The Plaintiff’s call to dispatch and Cardona’s observations prompted further investigation by Centro of other charges against the Plaintiff. (R. 643.) Nordheim notified the Plaintiff to see him about the supervisor’s report of unnecessary delay and late pull-out on August 19. (R. 643, 679.) Nordheim met with the Plaintiff on August 20, 2008. The Plaintiff waived his right to Union representation during the meeting. (R. 643, 680.) Later on August 20, 2008, Nordheim met with Union representatives Michael Aiello and Dominic LoSurdo. He reviewed with them a video recording of the Plaintiff’s bus run on August 19, 2008. (R. 643, 681.) Nordheim scheduled another meeting for August 21, 2008. However, at the request of the Plaintiff, the meeting was postponed until September 2, 2008. (R. 237, 643.) On September 2, 2008, Nordheim met with the Plaintiff, Watson, and Centro Vice President of Transit Operations Joe DeGray. (R. 644.) 28 At the meeting, the Plaintiff said that he had reported to work by his scheduled report time of 11:50 A.M. He said that he left the drivers’ room and went out to the garage. The Plaintiff’s excuse for his late pullout was that he could not find his bus because it was not parked in its usual location in the garage. He said that he spent eight minutes trying to locate his bus. He then called on his cell phone to find out where the bus was. He was told that it was parked outside the garage. He found his bus there and started it. He said that he pulled out to begin his run at approximately 12:10 P.M. (R. 644.) The bus that the Plaintiff drove (number 2593) had been moved outside the garage, along with other buses. The Plaintiff claims that Centro deliberately moved his bus, so he would be late and get in trouble for it. However, he did not present any evidence that Centro moved only his bus, or that it was moved for an improper purpose. It is undisputed that the Plaintiff’s bus and many other buses were moved because of construction or repair activity in or around the garage. On August 19, 2008, many Call-a-Buses were moved from inside the garage to the same area outside the garage. (R. 1385-86, 1409-10, 1415-16.) If a driver does not locate his bus within five minutes, he is supposed to call for assistance. There are telephones at the garage available for this purpose. However, the Plaintiff said that he wandered around longer than that looking for 29 his bus. There were no reported problems that day with other drivers not being able to locate their buses on time. (R. 644, 1410.) The Plaintiff’s own words confirmed that Centro did not single him out and only move his bus. The Plaintiff made secret recordings of various meetings and conversations with Centro and Union officials, without the knowledge of the other persons present. He then transcribed the recordings. The Plaintiff produced copies of the audio recordings and transcripts in discovery. At his deposition, the Plaintiff testified that, to the best of his knowledge, those transcripts accurately reflected what occurred at those meetings and in those conversations. He also testified that he included additional explanatory notes in the transcripts that were substantially accurate. (R. 359-60, 513-16.) One of the audio recordings and transcripts produced by the Plaintiff was of his meeting with Watson on August 29, 2008. The Plaintiff told Watson that, on August 19, 2008, he spent some time searching for his bus. The Plaintiff admitted that, even though there was a phone on the wall in the garage that he could have used to call Centro to ask about the location of his bus, he did not pick up that phone. Rather, he continued to search on foot. He eventually called a dispatcher, who told him that the bus was parked outside Door #1 of the garage. (R. 1400-05.) The Plaintiff saw that many buses, not just his, had been moved to the same area outside the garage. He told Watson that, when he went out Door #1, “now, the 30 whole; practically, the whole fleet was out there”. (R. 1405.) It is undisputed that many other buses were moved at around the same time, for a legitimate reason that had nothing to do with the Plaintiff. Nordheim reviewed a video recording of the Plaintiff’s bus run on August 19, 2008. The times displayed on the video, as recorded by the equipment, were not accurate. The Plaintiff’s cell phone record for August 19, 2008 showed the times that he had made calls that day. Therefore, Nordheim matched information from the Plaintiff’s cell phone log with what was displayed on the video to estimate the actual times displayed on the video. It appeared that the times on the video were off by 2 hours and 54 minutes. (R. 644, 683.) Thus, based on that calculation, it appeared that the Plaintiff had started to drive away from Centro property no earlier than approximately 12:04 P.M. Based on his own personal knowledge, the Plaintiff himself told Centro that he had pulled out at 12:10 P.M. The Plaintiff told Watson that he started his bus and called “in service” at about 12:10 P.M, about ten minutes after his normal pull- out time of 12:00 P.M. (R. 1405.) He also testified to this at his deposition. (R. 504, 506.) In any event, it is undisputed that the Plaintiff pulled out somewhere between 12:04 P.M. and 12:10 P.M. Whatever the exact time was, it was a late pullout. 31 On September 4, 2008, Nordheim met again with the Plaintiff and Watson. The Plaintiff told Nordheim again that he had spent eight minutes trying to locate his bus, and that he had pulled out at approximately 12:10 P.M. (R. 645.) On September 2, 2008, Nordheim presented a Notice of Charges. (R. 645, 686.) The charge of late pullout and unnecessary delay had already been presented through the ticket from Cardona. (R. 678.) Through his investigation, Nordheim found evidence that supported all of the charges. The Plaintiff was charged with misrepresentation for writing on his manifest that he left company property at 11:50 A.M., even though he had left at approximately 12:00 noon (actually between 12:04 and 12:10 P.M.). That the Plaintiff did this was obvious from looking at his manifest. (R. 687.) The Plaintiff was charged with insubordination for writing an alleged problem with the scheduling of his route on his driver’s manifest. The Plaintiff had previously been instructed not to write comments about problems on his manifest. There were different authorized procedures for him to communicate any concerns about scheduling of pickups or other matters. (R. 645-46, 691, 1016.) However, it is undisputed that he violated his employer’s instructions. (R. 687.) The Plaintiff was charged with failure to complete a required pre-trip safety inspection of his vehicle. He was also charged with failing to cycle the wheelchair lift of his vehicle to make sure that it was in a safe and working condition. The 32 Plaintiff admitted that he failed to take these required safety precautions. (R. 507- 510.) This failure alone was a serious matter and was sufficient cause for discipline of a bus driver entrusted with the safety of his passengers and of others on the road. The Plaintiff was charged with misrepresentation based on what he said when he radioed dispatch. He told the dispatcher that he was down about fifteen minutes, and that he had been delayed due to construction on Thompson Road. However, the video recording showed that he had only been on Thompson Road for a total of approximately four minutes. This included time that he was driving at a normal rate of speed and time spent waiting at two traffic lights. If the Plaintiff experienced any minor delay on Thompson Road due to construction, at most the delay was less than two minutes. (R. 1411-12, 1417-18.) Members of the Union’s Executive Board who viewed the video observed that the Plaintiff had only been delayed by no more than about two minutes. (R. 65-66, 237, 339-40, 344-45.) The Union proposed to Centro that the Plaintiff be permitted to return to work. Centro and the Union discussed the terms of a potential settlement agreement. Centro was willing to allow the Plaintiff to return to work immediately and remain an employee of Centro, with a loss of only a few weeks’ pay, subject to his being on probation. Watson strongly encouraged the Plaintiff to accept the proposed agreement. However, the Plaintiff rejected the proposed agreement. He 33 preferred to take his chances with arbitration and/or litigation. (R. 238-39, 541-42, 753-54.) Watson informed Centro that the Plaintiff was not willing to sign the proposed agreement. Centro proceeded with the review for termination hearing. Nordheim sought to schedule it for September 8, 2008. Instead, it was scheduled for September 10, 2008 at the request of the Plaintiff. Neither the Plaintiff nor the Union showed up on September 10, so Nordheim rescheduled the hearing for September 16. (R. 741-742.) Nordheim sent the Plaintiff a letter dated September 12, 2008, notifying him that the review for termination hearing had been scheduled for September 16, 2008. The letter stated that the Plaintiff’s presence was requested but not necessary for the hearing to occur. Nordheim also faxed the letter to the Union. (R. 695.) Nordheim also left telephone messages for the Plaintiff before and on the day of the hearing. Nordheim delayed the hearing for an hour to give the Plaintiff a further opportunity to attend. (R. 740-42.) The Plaintiff did not show up for the review for termination hearing on September 16, 2008 or give Centro any reason for his failure to attend. He was represented at the meeting by the Union. 34 Pursuant to the collective bargaining agreement, the review for termination took into consideration the Plaintiff’s employment history for the prior eighteen months. (R. 641, 696-738.) Nordheim provided information about his investigation and the review for termination to DeGray and Renock. They agreed that termination was appropriate under the circumstances. The Plaintiff was already on probation for misrepresentation, based on the prior incident on October 5, 2007. The notice of probation stated that another incident of misrepresentation would result in termination from employment. (R. 675-77.) By committing further misrepresentation on August 19, 2008, the Plaintiff violated his probation. Centro’s decision to terminate his employment took this into consideration, along with the other relevant circumstances. Renock asked DeGray to implement the decision. DeGray instructed Nordheim to communicate the decision to the Plaintiff. Nordheim prepared a summary of the review for termination hearing, dated September 17, 2008. (R. 739-42.) He provided a copy to the Union. Nordheim sent the Plaintiff a letter dated September 18, 2008. The letter stated that it had been determined that the Plaintiff had violated rules regarding unnecessary delay, late pull-out, misrepresentation, knowledge of equipment, inspection of equipment and use of 35 cell phone. Because of this and the totality of the circumstances, the Plaintiff’s employment was terminated, effective September 16, 2008. (R. 743.) The Plaintiff filed a grievance over the termination of his employment. The grievance was denied at the first step of the grievance procedure. On November 3, 2008, Renock met with the Plaintiff and Watson at the second step of the grievance procedure. On November 13, 2008, Renock denied the grievance. (R. 540-41, 637.) On November 20, 2008, the Union notified Centro that it would proceed to arbitration of the grievance, in accordance with Sections 2.08(b) and 2.09 of the collective bargaining agreement. (R. 638.) The contract provides that, when a grievance is arbitrated, initially Centro and the Union each designate an arbitrator. (R. 550.) Watson and Renock were the parties’ designated arbitrators. They discussed the possibility of settling the grievance. However, there was no settlement. The contract further provides that, if the matter is not resolved by the arbitrators designated by the parties, the Union may choose to proceed to arbitration before a neutral arbitrator. (R. 550.) On December 11, 2008, the Union’s Executive Board met and discussed the Plaintiff’s grievance. The Executive Board considered the evidence of the circumstances, and that the Plaintiff was on probationary status for 36 misrepresentation. The Board also discussed the Plaintiff’s rejection of the proposed settlement agreement which would have reinstated him to employment. He would not accept an outcome that was as good as or better than the result that the Union could have hoped to achieve in arbitration. It was reasonable for the Union to decline to pursue a grievance to arbitration, when the member had refused to accept an agreement that the Executive Board believed represented an outcome that was considered the best-case scenario if it proceeded to arbitration. Therefore, the Executive Board unanimously voted not to pursue the grievance to arbitration. The decision was not made for any improper reason. (R. 66-67, 240-41, 340-41, 345-46, 350-51.) On December 16, 2008, Watson notified Centro that the Union would not proceed with arbitration of the grievance. (R. 639.) In this consolidated action, the Plaintiff challenged both his discipline in 2007 and his discharge in 2008. The material facts about what the Plaintiff, the Union and Centro did are not disputed. They do not support any of the Plaintiff’s claims. Rather, they show that Centro had just cause for disciplining and discharging the Plaintiff, and that the Union fairly represented the Plaintiff. 37 POINT I IN THE ABSENCE OF ACTION BY THE LEGISLATURE, THE WELL-SETTLED RULE ARTICULATED BY THIS COURT IN MARTIN V. CURRAN SHOULD NOT BE DISTURBED A. The Martin Rule The Appellate Division cited, and followed, the decision of the Court of Appeals in Martin v. Curran, 303 N.Y. 276, 101 N.E.2d 683 (1951). In that case, this Court held that a plaintiff may not maintain a claim against a union that is an unincorporated association, unless the plaintiff proves that all of the individual members of the union authorized or ratified the complained-of conduct. The law in New York State has long been that there can be no DFR claim against a union that is an unincorporated association, unless the plaintiff proves that all of the members of the union authorized or ratified the complained-of conduct. The Appellate Division, Third Department recently reiterated that this is still the law in New York. Lahendro v. New York State United Teachers Assn., 88 A.D.3d 1142, 931 N.Y.S.2d 724 (3d Dept. 2011), citing the decision of the Court of Appeals in Martin v. Curran, 303 N.Y. 276, 101 N.E.2d 683 (1951), and the decision of the Fourth Department in Walsh v. Torres-Lynch, 266 A.D.2d 817, 697 N.Y.S.2d 434 (4th Dept. 1999). This rule may appear harsh, but the Court of Appeals has said that, in the absence of an act of the State Legislature, the courts in 38 this State are bound to follow it. Martin v. Curran, 303 N.Y. at 282, 101 N.E.2d at 686. The Martin decision was based on General Associations Law §13. This statute currently states: An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section. The service of summons, subpoena or other legal process of any court upon the president, vice president, treasurer, assistant treasurer, secretary, assistant secretary, or business agent, in his capacity as such, shall constitute service upon a labor organization. Such service shall be made on such individuals in the manner provided by law for the service of a summons on a natural person. [emphasis added] Thus, in order to bring an action against an unincorporated association, the plaintiff must be able to maintain the action against all of the members of the association. At the time of the Martin decision, §13 consisted of the first paragraph quoted above. Since then, the Legislature has only amended this section once for another unrelated purpose, to add the second paragraph (on service of process). 39 However, the Legislature has not chosen to repeal §13 or amend it in such a way as to supersede the rule articulated in Martin v. Curran. The Union is an unincorporated association. (R. 63.) The Plaintiff did not plead and prove that the individual members of the Union authorized or ratified the conduct which forms the basis for the Plaintiff’s DFR claims against the Union. Therefore, the Appellate Division correctly dismissed the Plaintiff’s DFR claims as a matter of law. The law on actions against unincorporated associations is very old. The principle behind General Associations Law §13 and the cases citing it predates the enactment of that statute in 1920. As discussed below, General Associations Law §13 was derived from former §1919 of the Code of Civil Procedure. Before that, it was part of English and American common law. McCabe v. Goodfellow, 133 N.Y. 89, 30 N.E. 728 (1892); 6A N.Y.Jur.2d, Associations and Clubs §39. Unincorporated associations were long viewed as having no legal status separate from their members. They did not have the capacity to sue or be sued. Rather, the action would have to be by or against the individual members of the association. There have been some statutory changes allowing unincorporated associations to sue or be sued in some fashion. As a procedural convenience, General Associations Law §13 allows a plaintiff to bring an action against an 40 association, in the name of certain officers of the association, rather than having to individually name as parties and serve all of the members of the association. However, the action still has to be one that could be maintained against all of the members of the association. B. The Legislative History of General Associations Law §13 Martin v. Curran was decided in 1951. However, the law on which it was based is much older than that. This gives even further effect to the applicability of the principle of stare decisis. The statutory antecedents to General Associations Law §13 go back at least to 1849. A law enacted that year stated: Any joint stock company or association, consisting of seven or more shareholders, or associates, may sue and be sued, in the name of the president or treasurer, for the time being, of such joint stock company or association; and all suits and proceedings so prosecuted, by or against such joint stock company or association, and the service of all process or papers in such suits and proceedings on the president or treasurer for the time being, of such joint stock company or association, shall have the same force and effect as regards the joint rights, property, and effects of such joint stock company or association, as if such suits and proceedings were prosecuted in the names of all the shareholders or associates, in the manner now provided by law. Chapter 258 of the Laws of 1849, §1. Legislation enacted in 1851 provided that the 1849 act was: . . . hereby extended to any company or association, composed of not less than seven persons who are owners of or have an interest in any 41 property, right of action, or demand, jointly or in common, or who may be liable to any action on account of such ownership or interest; and the suits and proceedings authorized by the said act may be brought and maintained in the manner therein provided. . . Chapter 455 of the Laws of 1851. In 1876, the Legislature adopted a comprehensive Code of Civil Procedure. This was followed by additional legislation to supplement the code. Chapter 178 of the Laws of 1880 added numerous sections to the code. They included §§ 1919- 24 (Action by or Against an Unincorporated Association). Section 1919 of the Code of Civil Procedure stated: An action or special proceeding may be maintained, by the president or treasurer of an unincorporated association, consisting of seven or more persons, to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an action or special proceeding, by reason of their interest or ownership therein, either jointly or in common. An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association, within the meaning of this section. [emphasis added] The second sentence of this section was identical to the current language of General Associations Law §13 involved in the present case. Thus, the same statutory language has been in effect for the last 133 years. 42 Cases decided under §1919 of the Code of Civil Procedure held that a plaintiff must plead and prove that all of the members of the association participated in or ratified the conduct complained of. McCabe v. Goodfellow, 133 N.Y. 89, 30 N.E. 728 (1892). This rule applied to unincorporated associations that were labor unions. Mazurajtis v. Maknawyce, 93 Misc. 337, 157 N.Y.S. 151 (Sup. Ct. N.Y. Co. 1916). In 1920, the Code of Civil Procedure was repealed, and the Civil Practice Act and other special practice acts were enacted. Many sections of the Code of Civil Procedure were transferred to the Civil Practice Act and other laws. As part of this recodification, the name of the Joint-Stock Association Law (enacted by Chapter 34 of the Laws of 1909) was changed to the General Associations Law. A new Article 3 (Action or Proceeding by or against Unincorporated Associations) was added to the General Associations Law. It included as §13: An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section. [emphasis added] 43 This carried over, essentially without change, the language of the last part of former §1919 of the Code of Civil Procedure. (The only difference was to omit a comma after the last use of the word “association” in this section.) The first part of §1919, dealing with actions or proceedings by unincorporated associations, was transferred to §12 of the General Associations Law. Thus, General Associations Law §13 retained the statutory requirement that, in order to maintain an action against an unincorporated association, the plaintiff must be able to maintain it against all of the members of the association. This is part of a statutory scheme whereby, if a member is unable to enforce a judgment against the property of the association, the member may proceed with an action against the individual members of the association. General Associations Law §16. Thus, the law on claims against unincorporated associations, including labor unions organized as such, was settled long before the Court of Appeals decided Martin v. Curran in 1951. The rule that was articulated by the Court of Appeals in Martin had already been in existence for many years. This Court declared that, in the absence of an act of the State Legislature, the courts in this State are bound to follow it. Martin v. Curran, 303 N.Y. at 282, 101 N.E.2d at 686. In the over sixty years since then, 44 the State Legislature has never seen fit to amend the law in such a way as to abrogate the rule. Since this Court decided Martin v. Curran in 1951, the State Legislature has only amended General Associations Law §13 once. Chapter 518 of the Laws of 1961 added the following paragraph regarding the service of process on certain union officials: The service of summons, subpoena or other legal process of any court upon the president, vice president, treasurer, assistant treasurer, secretary, assistant secretary, or business agent, in his capacity as such, shall constitute service upon a labor organization. Such service shall be made on such individuals in the manner provided by law for the service of a summons on a natural person. This amendment, enacted ten years after the Martin decision, only dealt with the titles of the officials upon whom process could be served. It did not address a plaintiff’s burden of pleading and proof. Moreover, when the current Civil Practice Law and Rules was enacted the following year to replace the Civil Practice Act, the Legislature affirmatively chose to leave intact the existing provisions of General Associations Law §§ 12 and 13. CPLR 1025 states that . . . actions may be brought by or against the president or treasurer of an unincorporated association on behalf of the association in accordance with the provisions of the general associations law. 45 This section was added by Chapter 308 of the Laws of 1962. It has never been amended since then. C. The Madden v. Atkins Exception Applies Only to Claims Based On Expulsion from Union Membership; It Does Not Apply to DFR Claims In Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633 (1958), the Court of Appeals recognized an exception to the Martin rule for causes of action alleging that a union wrongfully expelled a member. It does not apply to claims alleging breach of a union’s duty of fair representation. Madden v. Atkins viewed the wrongful expulsion of a member from a union as a breach of a contractual relationship between the member and the union. Id., 4 N.Y.2d 283 at 295, 174 N.Y.S.2d 633 at 641. The case did not view wrongful expulsion as a matter concerning the “property” of the union, or as a tort based on the intentional acts (“liability”) of the other members of the union. Thus, there is some basis for viewing Madden v. Atkins as being consistent with General Associations Law §13, without the need for legislative action to amend or repeal the statute. The Plaintiff contends that the exception to unanimous ratification carved out by this Court in Madden v. Atkins applies to DFR claims, when elected union officials are delegated authority to act on behalf of the union membership. 46 However, that case only carved out a limited exception to the Martin rule for claims based on expulsion from membership in a union. The present case does not involve such a claim. Moreover, there is no statutory or case law in New York State that holds an unincorporated union liable for the decision whether to pursue arbitration without compliance by the plaintiff with the Martin rule. Contrary to the assertions in the Plaintiff’s brief, the decision of the Fourth Department in this case does not conflict with its own precedents or with decisions from any other department of the Appellate Division. There is no reported New York State case holding that the Madden v. Atkins exception applies to DFR claims. The Fourth Department held long ago that the Madden v. Atkins exception applies to cases alleging wrongful expulsion from membership in a union. It does not extend to all cases where the union fails to pursue grievances. Saint v. Pope, 12 A.D.2d 168, 211 N.Y.S.2d 9 (4th Dept. 1961). The Fourth Department previously followed the Martin rule in Walsh v. Torres-Lynch, 266 A.D.2d 817, 697 N.Y.S.2d 434 (4th Dept. 1999). The court explained that the Martin rule applies to a cause of action alleging an intentional tort, and to a cause of action for damages resulting from the union’s failure to prosecute member grievances. The court squarely held that the Martin rule applies to DFR claims. 47 The Appellate Division, Third Department recently reiterated that the Martin rule is still the law in New York. Lahendro v. New York State United Teachers Assn., 88 A.D.3d 1142, 931 N.Y.S.2d 724 (3d Dept. 2011). See also Butler v McCarty, 191 Misc.2d 318, 327-28, 740 N.Y.S.2d 801, 808 (Sup. Ct. Madison Co. 2002), aff’d, 306 A.D.2d 607, 762 N.Y.S.2d 129 (3d Dept. 2003). See also the decision of the First Department in Duane Reade, Inc. v. Local 338 Retail, Wholesale, Department Store Union, 17 A.D.3d 277, 794 N.Y.S.2d 25 (1st Dept. 2005), lv. app. denied, 5 N.Y.3d 797, 801 N.Y.S.2d 560 (2005). The U.S. Court of Appeals for the Second Circuit has rejected the argument that Madden v. Atkins abrogated the Martin rule or severely restricted it. The court stated: Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633, 151 N.E.2d 73 (1958), which plaintiff claims to have severely restricted Martin v. Curran, supra, does nothing of the sort; it simply held that decision inapplicable to a suit by a union member against a union for damages, arising from a wrongful expulsion. . . Morrissey v. National Maritime Union of America, 544 F.2d 19, 33 (2d Cir. 1976). The Martin rule does not apply to certain claims against unions under federal law. However, federal courts in New York continue to follow the Martin rule with regard to claims under New York State law against unions that are unincorporated associations. Scopo v. Laborers’ Int’l Union of North America, No. 11-CV-3991 (CBA), 2013 WL 837293 (E.D.N.Y. March 6, 2013) (Amon, J.); Goodman v. Port 48 Authority of New York and New Jersey, No. 10-CV-8352, 2011 WL 3423800 (S.D.N.Y. August 4, 2011) (Sweet, J.). Madden v. Atkins should continue to be limited to union expulsion cases. Centro respectfully submits that there is no basis for expanding it to encompass DFR claims. Indeed, such an interpretation would be contrary to the express language of General Associations Law §13, which applies to claims that must be based on the “liability” of all of the members of an association. D. The Martin Rule Continues to Apply to DFR Claims, Which Are Based on Intentional, Bad-Faith Conduct, Not Mere Negligence The Plaintiff urges the Court to completely abrogate the Martin rule with respect to claims against unions. However, there is no support for this in statutory or case law. In particular, it is well established that the Martin rule applies to claims based on intentional wrongdoing by a union or its officials. Some cases do not apply the Martin rule to causes of action for negligence. They view it as inappropriate to require proof that the members of an association ratified conduct that was an unintentional tort. However, it is well settled that the requirement of unanimous ratification applies to intentional tort claims. For this purpose, DFR claims are treated as intentional tort claims. This is because, in order to maintain a DFR claim, negligence is or mistake is not enough. The plaintiff 49 must prove that the action of the union was arbitrary, discriminatory or undertaken in bad faith. In Salemeh v Toussaint ex rel. Local 100 Transportation Workers Union, 25 A.D.3d 411, 810 N.Y.S.2d 1 (1st Dept. 2006), an intentional tort case, the majority (four out of five justices on the panel) followed the Martin rule. The First Department echoed this Court’s admonition that that the argument that the requirements for maintaining an action against an unincorporated association should be relaxed “is more appropriately directed to the Legislature”. The Plaintiff cites the dissenting opinion of one justice, who proposed that the rule explained in Martin v. Curran should no longer be the law. However, that justice acknowledged that “under the existing law of New York as stated in Martin v. Curran, the motion court’s decision here was indeed correct”. Salemeh, supra, 25 A.D.3d at 413, 810 N.Y.S.2d at 3 (dissenting opinion of Saxe, J.). Later that same year, in another case involving alleged intentional torts by a union official, the First Department reiterated that the Martin rule “remains the law of New York”. The court declared: As the majority of this Court noted in Salemeh, any argument that these “stringent pleading and eviden[tiary] requirements for maintaining an action against an unincorporated association. . . should be relaxed is more appropriately directed to the Legislature” (25 A.D.3d at 411-412, 810 N.Y.S.2d 1). 50 Hoesten v. Best, 34 A.D.3d 143, 159-160, 821 N.Y.S.2d 40, 52-53 (1st Dept. 2006) (unanimous decision, including four justices who were not on the panel that decided the Salemeh case). The other cases cited by the Plaintiff can readily be distinguished. In Piniewski v. Panepinto, 267 A.D.2d 1087, 701 N.Y.S.2d 215 (4th Dept. 1999), the Fourth Department held that a union member’s intentional tort claim of assault was subject to the Martin rule, but his claim against the union for an unintentional tort such as negligence did not require a showing of membership authorization or notification. In Grahame v. Rochester Teachers Assn., 262 A.D.2d 963, 692 N.Y.S.2d 53 (4th Dept. 1999), appeal dismissed, 94 N.Y.2d 796, 700 N.Y.S.2d 428 (1999), the court held that a negligence claim alleging that a union gave a member erroneous information about her retirement benefits was not subject to the Martin rule. The court expressly stated that the claim in that case was not a DFR claim. The court followed the existing principle that the Martin rule does not apply to claims alleging an unincorporated association’s unintentional tort (such as negligence). In both of these cases, the court cited Torres v. Lacey, 3 A.D.2d 998, 163 N.Y.S.2d 451 (1st Dept. 1957). The different treatment of negligence claims and DFR claims is consistent with the well-established rule that, in order to prove a DFR claim, it is necessary to show more than mere negligence on the part of the union. Burning v. Niagara 51 Frontier Transit Metro System, Inc., 273 A.D.2d 830, 710 N.Y.S.2d 276 (4th Dept. 2000), lv. app. denied, 95 N.Y.2d 765, 716 N.Y.S.2d 39 (2000); Ahrens v. N.Y. State Public Employees Federation, 203 A.D.2d 796, 610 N.Y.S.2d 680 (3d Dept. 1994); Mellon v. Benker, 186 A.D.2d 1020, 588 N.Y.S.2d 482 (4th Dept. 1992); Garvin v. N.Y. State Public Employment Relations Board, 168 A.D.2d 446, 562 N.Y.S.2d 565 (2d Dept. 1990), lv. app. denied, 77 N.Y.2d 805, 568 N.Y.S.2d 913 (1991); Civil Service Employees Assn. v. PERB, 132 A.D.2d 430, 522 N.Y.S.2d 709 (3d Dept. 1987), aff’d, 73 N.Y.2d 796, 537 N.Y.S.2d 22 (1988). The Plaintiff cites Jackson v. Regional Transit Service, 54 A.D.2d 305, 388 N.Y.S.2d 441 (4th Dept. 1976). However, that case did not address the Martin rule. The court held that a public employee may bring a civil action directly against his employer if the employee can prove that the union breached its duty of fair representation. (It is not enough for the employee to merely allege a breach of DFR. In order to proceed against the employer, the employee must prove that the union breached its DFR.) E. The Principle of Stare Decisis Requires Adherence to the Martin Rule In the Absence of Action by the Legislature In the present appeal, the Plaintiff is asking this Court to take the drastic step of disregarding the principle of stare decisis – that courts should follow precedent unless there is a compelling reason to depart from it. 52 The principle of stare decisis is well ingrained in this Court’s jurisprudence. See, e.g., Great Northern Insurance Co. v Interior Construction Corp., 7 N.Y.3d 412, 419, 823 N.Y.S.2d 765, 769 (2006); Cenven, Inc. v Bethlehem Steel Corp., 41 N.Y.2d 842, 393 N.Y.S.2d 700 (1977); Cunningham v Nadjari, 39 N.Y.2d 314, 383 N.Y.S.2d 590 (1976); In re Schinasi's Will, 277 N.Y. 252, 265-66, 14 N.E.2d 58, 63 (1938). For a very recent discussion of stare decisis, See People v. Rudolph, ___ N.Y.3d ___, 2013 N.Y. Slip Op. 04840, 2013 WL 3213329 (June 27, 2013) (opinion of Read, J., dissenting). This Court declared in Martin v. Curran that any change in the law at issue in this case must be made by the Legislature, not by the courts. There has been no constitutional or statutory change since then, either directly changing the law, limiting the power of the Legislature, or expanding the power of the courts in this regard. Centro respectfully submits that this Court described the proper roles of the legislative and judicial branches of government when it decided Martin. Regardless of any changes in society since then, it is still up to the Legislature to decide whether the law should be changed as a result. In any event, even assuming arguendo that there are times when judicial reinterpretation or modification of a rule of law may be necessary and appropriate, 53 Centro respectfully submits that there has been no change that is so compelling that the Court must abrogate the Martin rule even without action by the Legislature. For example, any argument that the Martin rule should be abrogated by the courts because of changes in the size and nature of labor unions should be unavailing. The Martin court cited an even older 1915 decision. In that case, the Court of Appeals unanimously held that the plaintiff could not maintain an action against a union unless the action was one that could be maintained against the 30,000 members of the union. Schouten v. Alpine, 215 N.Y. 22, 109 N.E. 244 (1915). That decision almost a hundred years ago predated the enactment of General Associations Law §13 in 1920. When the Legislature enacted §13, it did not choose to put any limit on the maximum number of members that an association could have in order to be subject to this rule. In any event, the case presently before this Court does not involve an action against a large state, national or international union. It is an action against one local union in Central New York. Cases in which a plaintiff attempts to sue a large statewide, national or international union for breach of DFR are rare. Lahendro v. New York State United Teachers Assn., 88 A.D.3d 1142, 931 N.Y.S.2d 724 (3d Dept. 2011), is an anomaly. There, an employee named both the local teachers association and New York State United Teachers (“NYSUT”), with which the local union was affiliated, 54 as defendants. However, the collective bargaining unit is normally at the local level, and the collective bargaining agreement is normally between the employer and a local employee association. Therefore, most DFR actions are brought against the local union. (This is different for employees of the State. However, that is not the situation in the present case. Also, many State employees are represented by a union that is incorporated, and thus not covered by the Martin rule.) The Plaintiff argues that it is difficult to obtain unanimous ratification by the members of a union. However, courts have rejected this argument. Moreover, the suggestion that the requirements of Martin v. Curran are impossible to satisfy is simply untrue. See, e.g., Westchester, 129 N.Y.S.2d at 215. Metropolitan Opera Assn., Inc. v Local 100, Hotel Employees and Restaurant Employees Int’l Union, No. 00-Civ.-3613 (LAP), 2004 WL 1943099, 175 L.R.R.M. (BNA) 2870 (S.D.N.Y. Aug. 27, 2004) (Preska, J.), slip op. at p.18 n.23, citing Westchester County v. Westchester County Federation of Labor, 129 N.Y.S.2d 211, 215 (Sup. Ct. Westchester Co. 1953). The court expressed the opinion that the pleading requirement of Martin v. Curran could be satisfied by allegations that the members participated in, authorized beforehand, and/or ratified after the fact the action taken by union leadership. 55 The Martin rule does not apply to DFR claims against all unions, only to those that are unincorporated associations. Some unions are incorporated. Such unions include the Civil Service Employees Association, Inc. and several other unions that represent employees of the State of New York. While the Martin rule provides one advantage to unions that choose to be unincorporated associations, incorporation provides other advantages (such as not putting the personal assets of union members at risk based on actions taken by or on behalf of the corporation). There is no reason that a union should not be able to make the same lawful choice as other for-profit and not-for-profit entities regarding how it will be organized, and assume all of the benefits and burdens that result from its choice. As a matter of law, General Associations Law §13 applies generally to claims against unincorporated associations. A labor union is only one type of entity that may be organized as an unincorporated association. There is no principled basis for treating labor unions differently from other types of associations (except with respect to the list of officials upon which process may be served, in accordance with the second paragraph of §13). When the Legislature has not affirmatively acted to change the law, parties should be able to rely on the stability of the law. They structure their organizations, enter into agreements and transactions, and otherwise act in reliance 56 on the existing legal framework and rules. Centro respectfully submits that the principle of stare decisis requires that the courts continue to follow the Martin rule, unless and until the Legislature decides to change the law. If, notwithstanding the above, the Court still decides to abrogate or modify the Martin rule, Centro respectfully submits that it would be unjust to do so retroactively. If the Court decides to articulate a new or modified rule, Centro respectfully submits that the change should only be applied prospectively. 57 POINT II THE UNION DID NOT BREACH ITS DUTY OF FAIR REPRESENTATION TOWARD THE PLAINTIFF Even if the Court decides to abrogate or modify the Martin rule as a matter of statewide law, Centro respectfully submits that this should not alter the outcome of the present case. The Appellate Division determined that Centro and the Union should be granted summary judgment, dismissing all of the Plaintiff’s claims against them. In the present case, regardless of whether the Union’s actions were ratified by all of the members of the Union, the Union did not breach its duty of fair representation toward the Plaintiff. Also, in order to bring a direct action against his employer based on the collective bargaining agreement, an employee or former employee must show that the union breached its DFR. Since the Union did not breach its duty toward the Plaintiff, the Plaintiff lacks standing to maintain his breach of contract claims against Centro, as a matter of law. The applicable law regarding a union’s duty of fair representation definitively supports summary judgment dismissing the Plaintiff’s DFR claims. The legal standard necessary to show that a union breached its duty of fair representation is a very high one. The law is settled that a claim of a breach of a union’s duty of fair representation must be based on actions which are arbitrary, 58 discriminatory or undertaken in bad faith. Negligence or mistake is not enough. A union does not have the duty to pursue every grievance to arbitration or otherwise take it to the highest possible level, and the failure to do so does not, without more, breach its duty. Smith v. Sipe, 67 N.Y.2d 928, 502 N.Y.S.2d 134 (1986), reversing for the reasons stated in the dissenting memorandum of Presiding Justice Mahoney at the Appellate Division, 109 A.D.2d 1034 at 1036–1037, 487 N.Y.S.2d 153 (3d Dept. 1985); Burning v. Niagara Frontier Transit Metro System, Inc., 273 A.D.2d 830, 710 N.Y.S.2d 276 (4th Dept. 2000), lv. app. denied, 95 N.Y.2d 765, 716 N.Y.S.2d 39 (2000); Ahrens v. N.Y. State Public Employees Federation, 203 A.D.2d 796, 610 N.Y.S.2d 680 (3d Dept. 1994); Mellon v. Benker, 186 A.D.2d 1020, 588 N.Y.S.2d 482 (4th Dept. 1992); Garvin v. N.Y. State Public Employment Relations Board, 168 A.D.2d 446, 562 N.Y.S.2d 565 (2d Dept. 1990), lv. app. denied, 77 N.Y.2d 805, 568 N.Y.S.2d 913 (1991); Civil Service Employees Assn. v. PERB, 132 A.D.2d 430, 522 N.Y.S.2d 709 (3d Dept. 1987), aff’d, 73 N.Y.2d 796, 537 N.Y.S.2d 22 (1988). In some old cases, the New York State Public Employment Relations Board (“PERB”) said that negligence by a union could lead to a finding that it breached its DFR. However, the courts expressly and decisively rejected that line of cases many years ago, and PERB no longer follows them. In 1987, the Appellate Division, Third Department declared: 59 We disagree. In order to establish a claim for breach of the duty of fair representation against a union, 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 (see, Smith v. Sipe, 109 A.D.2d 1034, 1035, 487 N.Y.S.2d 153, revd. on dissenting opn. below 67 N.Y.2d 928, 502 N.Y.S.2d 134, 493 N.E.2d 237; see also, Baker v. Board of Educ. of W. Irondequoit School Dist., 70 N.Y.2d 314, 520 N.Y.S.2d 538, 514 N.E.2d 1109). Accordingly, and in any event, we reject the standard applied by PERB that “irresponsible or grossly negligent” conduct may form the basis for a union's breach of the duty of fair representation as not within the meaning of improper employee organization practices set forth in Civil Service Law § 209-a. An honest mistake resulting from misunderstanding or lack of familiarity with matters of procedure does not rise to the level of the requisite arbitrary, discriminatory or bad-faith conduct required to establish an improper practice by the union (see, Matter of Trainosky v. New York State Dept. of Taxation & Fin., 105 A.D.2d 525, 481 N.Y.S.2d 473). Civil Service Employees Assn. v. PERB, 132 A.D.2d 430, 432, 522 N.Y.S.2d 709, 710-11 (3d Dept. 1987) [emphasis added]. The Court of Appeals affirmed, 73 N.Y.2d 796, 537 N.Y.S.2d 22 (1988). Since then, PERB has, correctly, followed the courts. See, e.g., Transport Workers Union (Jain), 39 PERB ¶3019 (2006) (“Negligent or grossly negligent representation is not a violation of the union's obligation to represent its members”). In the present case, the Union advocated for the Plaintiff. When the Union’s Executive Board decided not to pursue the Plaintiff’s grievances to arbitration, it did so for legitimate reasons. There is no evidence at all in the record that its 60 decisions were arbitrary or discriminatory. Even assuming arguendo that, in hindsight, the Union did not take every step that it possibly could have, that would have been mere negligence, which is not actionable in a DFR case. With respect to the discipline of the Plaintiff in 2007, the Union represented the Plaintiff at all available stages of the grievance procedure, up to the selection of an arbitrator and the scheduling of an arbitration hearing. However, the Plaintiff refused to cooperate with the Union in its investigation of his grievance. This shows that the Union did not breach its duty of fair representation. United Federation of Teachers (White), 11 PERB ¶4551 (1978). Also, the Union had evidence that the Plaintiff had, in fact, committed misrepresentation. Ultimately, the Union’s Executive Board made a judgment call not to proceed with the arbitration, as it was entitled to do. The Union also represented the Plaintiff and vigorously advocated on his behalf in connection with the grievance over the termination of his employment. The Union was successful in negotiating an agreement with Centro whereby the Plaintiff would have been able to continue to work for Centro. Watson urged the Plaintiff to accept the proposed agreement. Watson explained to the Plaintiff that, if he accepted the offered reinstatement, this would be a sure thing. It would avoid the risk of a less favorable outcome. 61 Watson advised the Plaintiff of the terms of the proposed agreement before the review for termination hearing took place on September 16, 2008. (R. 238-41, 1386-91.) It is undisputed that the Plaintiff refused to accept an offer that would have allowed him to keep his job. (R. 238- 39, 541-42, 753-54.) Centro and the Union had utilized this type of agreement for many years. The Plaintiff knew this because he had signed and benefited from several of them. See, e.g., prior agreements in 1985, 1987 and 1989. (R. 1279-80, 1376-78.) After the Plaintiff signed the prior agreements, he continued to be employed by Centro for many years. Similarly, the agreement proposed in 2008 would have allowed the Plaintiff to keep his job with Centro. The Union was successful in negotiating with Centro for the proposed agreement, and the Plaintiff had the opportunity to agree to it, before Centro took any action to terminate his employment. Therefore, this matter could have been resolved in 2008, with very minimal loss of pay to the Plaintiff. Instead, the Plaintiff knowingly and deliberately chose to reject the proposed agreement. He assumed all risks associated with doing so, including the risk that the Union’s Executive Board would decline to pursue his grievance to arbitration. It is settled law that a union does not breach its duty of fair representation when it negotiates an agreement to reinstate an employee, the employee rejects the settlement, and the union decides not to arbitrate the grievance. Knight v. Drye, 62 Civil Action No. 07-3097, 2009 WL 704140 (E.D.Pa. March 13, 2009) (Robreno, J.), aff’d, 374 Fed.Appx. 280, 2010 WL 1473784 (3d Cir. 2010), cert. denied, U.S. , 131 S.Ct. 463 (2010); Scott v. Machinists Automotive Trades District Lodge No. 190, 827 F.2d 589 (9th Cir. 1987); Smiley v. Daimler Chrysler, 589 F.Supp2d 471 (D. Del. 2008); McGovern v. Intl. Brotherhood of Teamsters, 447 F.Supp. 368 (E.D.Pa. 1978). Centro respectfully submits that the Plaintiff may not maintain any claim which is based on the Union’s alleged breach of duty of fair representation toward him in connection with this matter, or which requires that the Union breached such duty, as a matter of law. The Appellate Division correctly granted summary judgment dismissing the Plaintiff’s DFR claims. Indeed, if a trial is required in this case to determine whether the Union breached its duty, it is difficult to imagine a case in which a trial would not be required over a DFR claim. However, that would be totally inconsistent with the vast body of case law on DFR claims. See, e.g., Civil Service Bar Assn. v. City of N.Y., 64 N.Y.2d 188, 485 N.Y.S.2d 227 (1984); Calkins v. Police Benevolent Assn. of N.Y. State Troopers, Inc., 55 A.D.3d 1328, 864 N.Y.S.2d 655 (4th Dept. 2008), lv. app. denied, 11 N.Y.3d 714, 873 N.Y.S.2d 532 (2009); Yoonessi v. State of N.Y., 289 A.D.2d 998, 735 N.Y.S.2d 900 (4th Dept. 2001), lv. app. denied, 98 N.Y.2d 609, 746 N.Y.S.2d 693 (2002), cert. denied, 537 U.S. 1047, 123 S.Ct. 602 63 (2002); Mamorella v. Derkasch, 276 A.D.2d 152, 716 N.Y.S.2d 211 (4th Dept. 2000); Burning v. Niagara Frontier Transit Metro System, Inc., 273 A.D.2d 830, 710 N.Y.S.2d 276 (4th Dept. 2000), lv. app. denied, 95 N.Y.2d 765, 716 N.Y.S.2d 39 (2000); Mellon v. Benker, 186 A.D.2d 1020, 588 N.Y.S.2d 482 (4th Dept. 1992). Regardless of whether the Martin rule applies, the Appellate Division properly granted summary judgment dismissing the Plaintiff’s DFR claims. 64 POINT III THE APPELLATE DIVISION CORRECTLY GRANTED SUMMARY JUDGMENT DISMISSING THE PLAINTIFF’S BREACH OF CONTRACT CLAIMS AGAINST CENTRO The Plaintiff asserted breach of contract claims against Centro under the collective bargaining agreement between Centro and the Union in connection with the Plaintiff’s discipline in 2007 and discharge in 2008. The Plaintiff lacks standing to pursue these claims in a civil action, since, as a matter of law, his sole remedy was through the contractual grievance procedure. A limited exception to this rule does not apply in this case, because the Union did not breach its duty of fair representation. Moreover, on the merits, Centro had just cause for disciplining and discharging the Plaintiff. The Plaintiff conceded that the ability of the Plaintiff to maintain an action against his former employer for breach of contract depended on his being able to prove that the Union breached its DFR. (R. 44.) However, in response to the Defendants’ motions for summary judgment, the Plaintiff did not rebut the Defendants’ proof that the Union did not actually breach its DFR. Therefore, the Plaintiff may not pursue his own civil action against Centro. 65 A. The Plaintiff Lacks Standing to Bring a Civil Action Against Centro To Enforce Rights Under the Collective Bargaining Agreement Between Centro and the Union. The Plaintiff lacks standing to assert breach of contract claims in his own private civil action against his former employer. It is settled law in New York State that the individual members of a collective bargaining unit may not assert claims under the collective bargaining agreement in a civil action. They are limited to seeking relief through their union, pursuant to the contractual grievance procedure. The Court of Appeals has held that an individual employee has no standing to bypass his union and bring a lawsuit directly against his employer to enforce the provisions of a collective bargaining agreement, unless the agreement grants the employee that right or the union has breached its duty of fair representation. Board of Education of Commack Union Free School District v. Ambach, 70 N.Y.2d 501, 522 N.Y.S.2d 831 (1987), cert. denied, Margolin v. Board of Education, 485 U.S. 1034, 108 S.Ct. 1593 (1988). This Court did not say that it was sufficient for a plaintiff or petitioner merely to allege that the union breached its duty. Rather, the Court explained: Without a showing that the union breached its duty of fair representation in prosecuting the employee’s grievance, its decision to conclude the grievance process short of the final step allowed by contract or law is binding on the employee and precludes resort to additional remedies. . . 66 Id., 70 N.Y.2d at 511, 522 N.Y.S.2d at 836 [emphasis added]. The Court concluded: By the same token, Margolin’s grievance terminated when he exhausted internal procedures and, in seeking further appeal of the very same contract matter, made no showing of breach of the union’s duty of fair representation that might permit him to go beyond the stipulated grievance mechanism. Id., 70 N.Y.2d at 512, 522 N.Y.S.2d at 836 [emphasis added]. Other courts in New York State have repeatedly followed this rule. Rine v. Higgins, 244 A.D.2d 963, 964, 665 N.Y.S.2d 165, 167 (4th Dept. 1997), citing Berlyn v. Board of Education of East Meadow Union Free School District, 80 A.D.2d 572, 573, 435 N.Y.S.2d 793, 794 (2d Dept. 1981), aff’d, 55 N.Y.2d 912, 449 N.Y.S.2d 30 (1981); see also Wolfson v. Preventative Medicine Clinical Services, 26 A.D.3d 751, 809 N.Y.S.2d 322 (4th Dept. 2006); Yoonessi v. State of N.Y., 289 A.D.2d 998, 735 N.Y.S.2d 900 (4th Dept. 2001), lv. app. denied, 98 N.Y.2d 609, 746 N.Y.S.2d 693 (2002), cert. denied, 537 U.S. 1047, 123 S.Ct. 602 (2002). In the present case, the Plaintiff’s breach of contract claims against Centro were based on the collective bargaining agreement between Centro and the Union. Any disputes under the agreement were to be resolved by the grievance procedure 67 in Article II of the agreement. Section 2.02(a) on page 4 broadly defined a “grievance” as follows: A “grievance” is any alleged violation of this Agreement by either party or any dispute with respect to its meaning or application. (R. 547.) The contract did not give an individual the right to bring a lawsuit to enforce rights under the agreement. (R. 547-51.) Therefore, if the Plaintiff disagreed with Centro’s administration of the contract, his exclusive remedy was the contractual grievance procedure. There has been no determination by a court or PERB that the Union breached its duty toward the Plaintiff. The Plaintiff did not prove that the Union breached its duty of fair representation. Therefore, the Plaintiff may not maintain a private civil action against Centro based on an alleged breach of the collective bargaining agreement. B. Centro Had Just Cause for Disciplining and Discharging the Plaintiff 1. The Discipline in 2007 There was a solid underpinning for Centro’s discipline of the Plaintiff for misrepresentation on October 5, 2007. The Union did not breach its duty of fair representation in deciding not to proceed with arbitration. The Plaintiff called in and told Centro dispatch that he had been called out of town the night before and that he would not be back to do his run that day. It is undisputed that the Plaintiff 68 worked for Quality Coach on October 5, 2007 instead of reporting for his regularly scheduled assignment at Centro. When Centro disciplined the Plaintiff, it had information from one of the owners of Quality Coach that the Plaintiff had not received the work the day before. (R. 745-46, 748.) Also, at his deposition, the Plaintiff testified that he was “still in town” when he made the call-in. (R. 500.) The Plaintiff’s wife testified that they had been planning to go on the trip for several months, and that she had made the travel arrangements more than a week before they left. (R. 501-03.) Paragraph 40 of the Plaintiff’s affidavit in opposition to the Defendants’ motions for summary judgment stated: October 5, 2007 was Columbus Day weekend. I drove a group to Washington DC for Quality Coach that weekend. I had taken a floating holiday for Monday, October 8. I had attempted to sign the “Book Off” to take October 5, 2007 off without being charged for an unexcused absence, but the date had gotten away from me, and by the time I went to sign the “Book Off” it was too late. (R. 780.) This was consistent with the investigations by Centro and the Union, which showed that the Plaintiff had taken steps eight days before the trip to seek time off from Centro. (R. 233-34.) The Plaintiff had deliberately planned in advance to be absent from work for Centro on October 5, 2007. This was a calculated deception. His affidavit did not describe being “called out of town the night before” October 5. 69 When the Plaintiff could not find an authorized way to be absent from work for Centro on October 5, he tried to get out of it by calling in to Centro that morning. When the Plaintiff told Centro on the morning of October 5, 2007 “I was called out of town last night”, that was a misrepresentation. 2. The Discharge in 2008 Before Centro terminated the Plaintiff’s employment, Centro had numerous meetings with the Plaintiff and his Union representatives for the purpose of investigating the circumstances and to give the Plaintiff the opportunity to present his side of the story. They culminated in a review for termination hearing. The undisputed facts show that the Plaintiff was guilty of the charges against him. He committed misrepresentation again, and he engaged in conduct which interfered with Centro’s provision of safe and timely transportation service to the public. The Union did not breach its DFR by deciding not to challenge Centro’s determination in arbitration. The Plaintiff pulled out late to begin his bus run on August 19, 2008. The Plaintiff himself testified at his deposition that he was supposed to begin his run at 12:00 noon, but that he pulled out at 12:10 P.M. (R. 504-06.) There was other evidence that he may have left at 12:09, or 12:04 at the earliest. In any event, it is undisputed that he pulled out late. (R. 644-45, 1405.) This is a serious problem 70 for a public transit authority whose customers, particularly the elderly and disabled, depend upon their bus transportation arriving on schedule. The Plaintiff was charged with misrepresentation for writing on his driver’s manifest that he left company property at 11:50 A.M., even though he had left at 12:00 noon. The manifest itself showed that he put down a departure time of 11:50 A.M. in the column for “leave garage”. (R. 687.) It is also undisputed that he actually left some time after 12:00 P.M. (R. 504-06, 644-45, 1405.) Thus, the time that he put on his manifest was false by more than ten minutes. The Plaintiff was charged with insubordination for writing a note about an alleged problem with scheduling of pickups of passengers on his driver’s manifest, in violation of an order to use the proper company forms to document a problem. The Plaintiff’s note is on the manifest near the bottom of the first page. (R. 687.) On August 1, 2008, Nordheim had instructed the Plaintiff not to write this type of note on his manifest. (R. 645-46, 691.) The Plaintiff signed the notice to acknowledge his receipt of it, and he does not contest this. Centro charged the Plaintiff with failing to do a complete pre-trip inspection of his bus, and with failing to check whether the wheelchair lift on the bus was operational. At his deposition, the Plaintiff admitted that he had done neither of these required safety checks. (R. 507-10.) 71 One of the main charges against the Plaintiff was that, on August 19, 2008, he engaged in misrepresentation when he made a statement to Centro during his bus run. The Plaintiff radioed Centro dispatch to report that he was running late. He told the dispatcher: I’m down about fifteen minutes, I was delayed due to construction on Thompson Road. (R. 646.) Several years after the event, the Plaintiff’s answering papers tried to explain this away by claiming that “I’m down about fifteen minutes” and “I was delayed due to construction on Thompson Road” were two separate statements. The Plaintiff argued that it was wrong for Centro to take what he said as a representation that he was delayed for fifteen minutes due to construction on Thompson Road. (R. 796.) However, in his sworn deposition testimony, the Plaintiff testified: Q And what did you say to dispatch at that time? A That I was late, 15 minutes late, due to construction on Thompson Road. The Plaintiff went on to admit: Q Were you delayed 15 minutes on Thompson Road due to construction? A No. 72 (R. 511-12.) [emphasis added]. This was a direct admission, under oath, by the Plaintiff that he had engaged in misrepresentation to Centro, another calculated deception. The Plaintiff also admitted to Watson on September 4, 2008 that he had not been delayed due to construction on Thompson Road. The Plaintiff documented his admission by his own secret recording and transcript of the recording. (R. 359- 61, 513-23.) By his own admission, the Plaintiff lied to Centro. Centro and the Union were correct in determining that the Plaintiff was guilty of misrepresentation on August 19, 2008. At that time, the Plaintiff was already on probation for his prior misrepresentation on October 5, 2007. He had been put on notice, in writing, that another incident of misrepresentation would result in termination from employment. (R. 675-77.) He violated his probation on November 19, 2008. The undisputed facts show that the Plaintiff was guilty of the charges. Indeed, the Plaintiff admitted that he actually did what he was fired for. Therefore, Centro had just cause for discharging the Plaintiff, and the Union’s Executive Board made a reasonable decision not to pursue the Plaintiff’s grievance to arbitration. 73 POINT IV THIS COURT’S DISPOSITION OF THE APPEAL SHOULD LEAVE INTACT THE APPELLATE DIVISION’S SUMMARY JUDGMENT DISMISSING ALL OF THE PLAINTIFF’S CLAIMS AGAINST CENTRO AND THE UNION For the reasons set forth above, Centro respectfully submits that the rule enunciated by this Court in Martin v. Curran is still good law and should not be overruled. The Union raised the Martin rule as an affirmative defense in its answers to both of the Plaintiff’s complaints. (R. 291, 333.) Centro also raised the Martin rule as an affirmative defense in both of its answers. Centro alleged that the Plaintiff may not maintain any claim which is based on the Union’s alleged breach of DFR, or which requires that the Union breached its DFR. (R. 405, 466.) Therefore, Centro respectfully submits that if this Court decides not to overrule the Martin rule, Centro should benefit from that decision, and the Appellate Division’s dismissal of the Plaintiff’s claims against Centro should not be disturbed. Even if the Court is inclined to reconsider Martin v. Curran, Centro contends that this issue should have no bearing on the outcome of the present case. Regardless of whether a plaintiff must plead and prove ratification by the entire membership of the union, this Plaintiff, Eugene Palladino, does not have a viable 74 DFR claim. There is no evidence that the Union breached its duty of fair representation to the Plaintiff. Since there is no evidence to support the Plaintiff’s DFR claims against the Union, Centro contends that the Plaintiff’s breach of contract claims against Centro must also fail, as a matter of law. If the Union is granted summary judgment on the DFR claims, then the Plaintiff lacks standing to pursue breach of contract claims against his former employer. The Plaintiff attempted to assert a claim against Centro under 42 U.S.C. §1983 for deprivation of his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Plaintiff alleged that, as an individual employee, he was treated differently from other drivers. However, the complaint did not allege, and the Plaintiff did not prove, any unequal treatment of the Plaintiff based on his membership in a particular class. This is fatal to his Equal Protection claim, as a matter of law. The U.S. Supreme Court has held that a “class-of-one” theory of equal protection does not apply in the context of public employment. Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 128 S.Ct. 2146 (2008). The Court began its opinion by clearly and unequivocally declaring: The question in this case is whether a public employee can state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, 75 with no assertion that the different treatment was based on the employee's membership in any particular class. We hold that such a class-of-one theory of equal protection has no place in the public employment context. Id., 553 U.S. at 594, 128 S.Ct. at 2148-49. The Plaintiff already abandoned his Equal Protection claim in the appeal to the Appellate Division by Centro and the Union. Smith v. Reeves, 96 A.D.3d 1550, 946 N.Y.S.2d 750 (4th Dept. 2012). Based on that, and the clear U.S. Supreme Court precedent, any further attempt by the Plaintiff to assert that claim would be futile. Therefore, Centro respectfully submits that the case should not be remitted to the Appellate Division for the purpose of consideration of that claim. Even if the Court holds that the Plaintiff was not required to plead and prove ratification by all of the members of the Union in order to maintain a DFR claim against the Union, under the circumstances of this case, the Appellate Division was correct to grant summary judgment dismissing the Plaintiff’s DFR claims. The Appellate Division reversed the order of Supreme Court, Onondaga County insofar as appealed from, on the law, granted the motions by Centro and the Union for summary judgment in their entirety, and dismissed the Plaintiff’s complaints. This Court may determine that this grant of summary judgment “necessarily means that the court held as a matter of law that the opposing affidavits were inadequate to set up a triable issue of fact.” Millerton Agway 76 Cooperative, Inc. v. Briarcliff Farms, Inc., 17 N.Y.2d 57, 61, 268 N.Y.S.2d 18, 21 (1966). Therefore, Centro respectfully submits that, even the Court of Appeals holds that the Martin rule does not apply to DFR claims against unincorporated associations, this Court may modify the Memorandum and Order of the Appellate Division accordingly, but still otherwise affirm the judgment dismissing all of the Plaintiff’s claims. If the Court decides that it is necessary to remit this case to the Appellate Division to decide whether Centro and the Union are entitled to summary judgment on the other grounds raised by them in their appeal to the Appellate Division, which the Appellate Division did not expressly discuss in its opinion. Centro respectfully requests that this Court direct the Appellate Division to decide those issues itself, rather than remand the case to Supreme Court, Onondaga County. Justice Murphy already decided those issues against the Defendants. (R. 11-14, 50-55). The Defendants made arguments to the Appellate Division based on an already voluminous and well-developed record. CPLR 5613; CPLR 5612(a); Bennett v. Twin Parks Northeast Houses, Inc, 93 N.Y.2d 860, 688 N.Y.S.2d 94 (1999); Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 350, 704 N.Y.S.2d 177, 187 (1999); Rudman v. Cowles Communications, Inc., 30 N.Y.2d 1, 14, 30 N.Y.S.2d 33, 43 (1972). CONCLUSION Since this Court decided Martin v. Curran in 1951, the State Legislature has not seen fit to change the applicable law. Moreover, nothing else has changed which would justify departure from the principle of stare decisis in this case. Accordingly, the long-settled requirement that the plaintiff must plead and prove authorization or ratification by the members of an unincorporated association should continue to apply to claims against labor unions for alleged breach of the duty of fair representation. Centro respectfully requests that the judgment of the Appellate Division be affirmed, and that the summary judgment dismissing all of the Plaintiffs claims not be disturbed. Respectfully submitted, FERRARA, FIORENZA, LARRISON, BARRETT & REITZ, P.C. 77 Cra· M. Atlas, Esq., of Counsel ttorneys for Defendant-Respondent CNY Centro, Inc. 5010 Campuswood Drive East Syracuse, New York 13057 Telephone: (315) 437-7600 Fax: (315) 437-7744