Mellon v. Benker

186 A.D.2d 1020

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1992
• Status: Published

Opinion

— Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Defendants contend that Supreme Court erred in denying their motion for summary judgment dismissing plaintiffs complaint in this action for breach of defendants’ duty of fair representation. We agree.

“To sustain a cause of action for breach of the duty of fair representation there must be substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives” (Badman v Civil Serv. Empls. Assn., 91 AD2d 858). The fact that the union was guilty of mistake, negligence or lack of competence does not suffice for such a claim (Trainosky v Civil Serv. Empls. Assn., 130 AD2d 827). Moreover, a union has discretion with respect to processing grievances, and the mere failure on the part of the union to process a grievance is not per se a violation of its duty of fair representation (Symanski v East Ramapo Cent. School Dist., 117 AD2d 18, 21).

In opposition to the motion, plaintiff has submitted only the conclusory and self-serving affidavits of herself and her attorney; she has provided no evidence of defendants’ bad faith, discrimination or arbitrariness. Plaintiff’s showing is insufficient to raise an issue of fact warranting denial of defendants’ motion for summary judgment (see, Trainosky v Civil Serv. Empls. Assn., supra; Badman v Civil Serv. Empls. Assn., supra). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.) Present — Callahan, J. P., Green, Pine, Boehm and Doerr, JJ.