Duane Reade, Inc. v. Local 338 Retail, Wholesale, Department Store Union

Appellate Division of the Supreme Court of New York

Duane Reade, Inc. v. Local 338 Retail, Wholesale, Department Store Union

17 A.D.3d 277, 794 N.Y.S.2d 25, 177 L.R.R.M. (BNA) 2826, 2005 N.Y. App. Div. LEXIS 4466

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 2005

StatusPublished

Cited by11 cases

This text of 17 A.D.3d 277 (Duane Reade, Inc. v. Local 338 Retail, Wholesale, Department Store Union) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Duane Reade, Inc. v. Local 338 Retail, Wholesale, Department Store Union, 17 A.D.3d 277, 794 N.Y.S.2d 25, 177 L.R.R.M. (BNA) 2826, 2005 N.Y. App. Div. LEXIS 4466 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 9, 2004, which granted defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and denied plaintiffs cross motion for leave to amend, unanimously affirmed, with costs.

[278]*278Dismissal of the claims against Local 338 was required because plaintiff failed to plead that each individual union member authorized or ratified the unlawful action (see Martin v Curran, 303 NY 276 [1951]; Zanghi v Laborers’ Intl. Union of N. Am., AFL-CIO, 8 AD3d 1033 [2004], lv denied 4 NY3d 703 [2005]; Piniewski v Panepinto, 267 AD2d 1087, 1088 [1999]; Walsh v Torres-Lynch, 266 AD2d 817, 818 [1999]; R.M. Perlman Inc. v New York Coat, Suit, Dresses, Rainwear & Allied Workers’ Union Local 89-22-1, I.L.G.W.U., 789 F Supp 127, 132 [SD NY 1992]). In these circumstances, plaintiffs reliance solely on the general language of the union’s constitution is insufficient under Martin in the absence of objective facts pleaded to support a finding of explicit authorization or ratification.

The individual defendants cannot be held liable for acts committed in their capacity as union representatives, even if those acts were not authorized by the union membership (Martin v Curran, 303 NY 276 [1951], supra; see also Complete Auto Transit, Inc. v Reis, 451 US 401 [1981]; Morris v Local 819, Intl. Bhd. of Teamsters, 169 F3d 782, 784 [2d Cir 1999]; Covello v Depository Trust Co., Local 153, 88 F Supp 2d 59, 61-62 [ED NY 2000]). In the first amended complaint, the individual defendants were sued as representatives of the union. Were we to consider the proposed second amended complaint, which for the first time named these defendants in their individual capacity, we would find no allegation of conduct by the individual defendants unrelated to their roles as union officials.

We have considered plaintiffs other arguments and find them unavailing. Concur—Buckley, P.J., Sullivan, Ellerin, Williams and Catterson, JJ.

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Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 9, 2004, which granted defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and denied plaintiffs cross motion for leave to amend, unanimously affirmed, with costs.

[278]*278Dismissal of the claims against Local 338 was required because plaintiff failed to plead that each individual union member authorized or ratified the unlawful action (see Martin v Curran, 303 NY 276 [1951]; Zanghi v Laborers’ Intl. Union of N. Am., AFL-CIO, 8 AD3d 1033 [2004], lv denied 4 NY3d 703 [2005]; Piniewski v Panepinto, 267 AD2d 1087, 1088 [1999]; Walsh v Torres-Lynch, 266 AD2d 817, 818 [1999]; R.M. Perlman Inc. v New York Coat, Suit, Dresses, Rainwear & Allied Workers’ Union Local 89-22-1, I.L.G.W.U., 789 F Supp 127, 132 [SD NY 1992]). In these circumstances, plaintiffs reliance solely on the general language of the union’s constitution is insufficient under Martin in the absence of objective facts pleaded to support a finding of explicit authorization or ratification.

The individual defendants cannot be held liable for acts committed in their capacity as union representatives, even if those acts were not authorized by the union membership (Martin v Curran, 303 NY 276 [1951], supra; see also Complete Auto Transit, Inc. v Reis, 451 US 401 [1981]; Morris v Local 819, Intl. Bhd. of Teamsters, 169 F3d 782, 784 [2d Cir 1999]; Covello v Depository Trust Co., Local 153, 88 F Supp 2d 59, 61-62 [ED NY 2000]). In the first amended complaint, the individual defendants were sued as representatives of the union. Were we to consider the proposed second amended complaint, which for the first time named these defendants in their individual capacity, we would find no allegation of conduct by the individual defendants unrelated to their roles as union officials.

We have considered plaintiffs other arguments and find them unavailing. Concur—Buckley, P.J., Sullivan, Ellerin, Williams and Catterson, JJ.

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17 A.D.3d 277, 794 N.Y.S.2d 25, 177 L.R.R.M. (BNA) 2826, 2005 N.Y. App. Div. LEXIS 4466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duane-reade-inc-v-local-338-retail-wholesale-department-store-union-nyappdiv-2005.

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