Lagenor v. Weed

Appellate Division of the Supreme Court of New York

Lagenor v. Weed

127 A.D.2d 970, 513 N.Y.S.2d 70, 1987 N.Y. App. Div. LEXIS 43455

Appellate Division of the Supreme Court of the State of New York·Decided February 27, 1987·Published·Cited by 1 cases

Opinion

Order unanimously reversed on the law without costs, defendants’ motions [971] granted and complaint dismissed. Memorandum: The complaint should be dismissed for failure to state a cause of action. The cause of action for wrongful discharge is without merit because plaintiff is an employee at will (O’Connor v Eastman Kodak Co., 65 NY2d 724). Plaintiff’s reliance upon the collective bargaining agreement to remove him from the status of an employee at will is misplaced. The agreement protects from discharge without just cause only those civil service employees covered by section 75 of the Civil Service Law. Plaintiff is not such an employee.

The cause of action against the union for denial of fair representation is without merit because, under the collective bargaining agreement, defendant has no meritorious grievance due to his discharge (see, Vaca v Sipes, 386 US 171, 191-192).

Finally, the cause of action for employer domination is one for an unfair labor practice, which is within the exclusive jurisdiction of the Public Employee Relations Board (Civil Service Law § 205 [5] [d]; § 209-a [1]). (Appeal from order of Supreme Court, Erie County, Kubiniec, J. — dismiss complaint.) Present — Dillon, P. J., Doerr, Boomer, Green and Davis, JJ.

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Order unanimously reversed on the law without costs, defendants’ motions [971] granted and complaint dismissed. Memorandum: The complaint should be dismissed for failure to state a cause of action. The cause of action for wrongful discharge is without merit because plaintiff is an employee at will (O’Connor v Eastman Kodak Co., 65 NY2d 724). Plaintiff’s reliance upon the collective bargaining agreement to remove him from the status of an employee at will is misplaced. The agreement protects from discharge without just cause only those civil service employees covered by section 75 of the Civil Service Law. Plaintiff is not such an employee.

The cause of action against the union for denial of fair representation is without merit because, under the collective bargaining agreement, defendant has no meritorious grievance due to his discharge (see, Vaca v Sipes, 386 US 171, 191-192).

Finally, the cause of action for employer domination is one for an unfair labor practice, which is within the exclusive jurisdiction of the Public Employee Relations Board (Civil Service Law § 205 [5] [d]; § 209-a [1]). (Appeal from order of Supreme Court, Erie County, Kubiniec, J. — dismiss complaint.) Present — Dillon, P. J., Doerr, Boomer, Green and Davis, JJ.

Lagenor v. Weed, 127 A.D.2d 970, 513 N.Y.S.2d 70, 1987 N.Y. App. Div. LEXIS 43455 (N.Y. Ct. App. 1987).

Pincite

127 A.D.2d 970 (Lagenor v. Weed) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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