Plaintiff commenced this action alleging, inter alia, that defendant breached the duty of fair representation by failing or unfairly processing a grievance on the plaintiff's behalf. Defendants interposed an answer and all discovery has been completed. At present, the defendants are moving for summary judgment on the ground that they did not breach the plaintiff's duty; fully represented the plaintiff to the extent permissible under the collective bargaining agreement; and/or that they did not act arbitrary, discriminatory or in bad faith in addressing the plaintiff's grievance.

It is undisputed that plaintiff began her employment with the New York State Parks Recreation and Historic Preservation Unit [hereinafter the "Parks Department"] in March of 1999. She was assigned to the Clay Pit Ponds State Park Preserve located at 83 Nielsen Avenue, Staten Island, New York. Plaintiff, through her employment with the Parks Department, was a member of defendant CSEA Local 1000, AFSCME AFL-CIO, which is a labor union providing exclusive bargaining representation for various employees throughout the State of New York.

In November 2006, plaintiff was appointed to the position of Park and Recreational Activity Specialist wherein her appointment memo clearly indicated;

"[y]our status is temporary pending a determination by the Civil Service Commission to place this position in the non-competitive jurisdictional class. At that time, your status will be changed to permanent and you will be required to complete a probationary period of 52 weeks beginning on the 1st day of the permanent appointment. It is our policy that all employees serve the maximum probationary period. Your satisfactory completion of this probationary period is required for retention as a permanent staff member."

In early 2007, the plaintiff was placed on medical leave for approximately two months and was informed that, as a result, her probationary period would be extended by an additional two months. On September 21, 2007, the plaintiff received another appointment memo granting her permanent appointment to the title of Park Recreation Activities Specialist, effective August 15, 2007. Again, the memo indicates "[y]ou are required to complete a probationary period of 26-52 weeks beginning on the first day of the appointment. It is our policy that all employees serve the maximum probationary period."

Thereafter, on or about March 4, 2008, the plaintiff received her first "Probationary [*2]Progress Report" which indicated that plaintiff's time and attendance was unsatisfactory. Thereafter, on July 23, 2008, plaintiff submitted her resignation indicating that "I hereby offer my resignation from my position with the New York State Office of Parks, Recreation and Historic Preservation to seek other employment effective August 6th, 2008." Soon thereafter, the plaintiff was put in contact with Kalliopi Zervos, a Labor Relations Specialist in defendant's New York office who met with the plaintiff to discuss her situation in late August, 2008. It is undisputed that Mrs. Zervos met with the Parks Associate Personnel Administrator, Joseph Lescinski, in an effort to resolve the dispute and possibly negotiate a rescission of the resignation. After reviewing the file, determining Mrs. Delsantes' probationary status, and noting her chronic lateness, Mr. Lescinski indicated they would not rescind the resignation. Mrs. Zervos then informed the plaintiff that because of her probationary status, pursuant to the Collective Bargaining Agreement § 33.1, she could not pursue her grievance further. Plaintiff contends that the defendants breached the duty of fair representation by failing to pursue a claim on her behalf. Defendants argue that they fully represented the plaintiff but because of her probationary status the collective bargaining agreement limited the options for pursuing her claim and further, that they did not act in bad faith in pursuing her claim and as such, are now moving for summary judgment.

"A cause of action alleging that an employee organization such as CSEA has breached its duty of fair representation begins to accrue within four months of the date the employee or former employee knew or should have known that the breach has occurred, or within four months of the date the employee or former employee suffers actual harm, whichever is later'" (Nabors v. Town of Somers, 54 AD3d 833, 833 [2d Dept., 2008]; CPLR § 214[2][1]).

Here, the defendants contend that Mrs. Zervos told the plaintiff on September 26, 2008, that no further claims would be processed on her behalf and thus the commencement of this action on or about February 4, 2009, is untimely. Plaintiff contends that she realized on or about October 20, 2008, that the defendant had ceased all efforts on her behalf and therefore the commencement of this action was timely, where the expiration of the statute of limitations was February 20, 2008. The court finds, however, that in direct contradiction of plaintiff's affidavit in support of her motion, plaintiff testified at her examination before trial that she never spoke with the defendant's Labor Relations Specialist, Ms. Zervos after September 26, 2008, although she did attempt to contact her several times, and was told that there was nothing further that could be done ^[FN1].

This Court finds that on September 26, 2008, the plaintiff should have known that the alleged breach of the duty of fair representation occurred, as Mrs. Zervos has indicated as much to the plaintiff on that date. As a result, the commencement of this action on or about February 20, 2009, is untimely. As such, the plaintiff's claims are dismissed.

While academic it is noteworthy that defendant's motion for summary judgment is also warranted on the ground that the defendants did not act arbitrary, discriminatory or in bad faith in addressing the plaintiff's claims. It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact [*3](Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegard v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard "the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v. Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

With respect to claims based upon the alleged breach of a duty of fair representation, the plaintiff must establish that the defendants acted "deliberately invidious, arbitrary and founded in bad faith" (Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]; Gordon v. City of New York, 167 AD2d 509, 509-510 [2d Dept., 1990]; Garvin v. NYS Pub. Emply Relations Bd., 168 AD2d 446, 446 [2d Dept., 1990]). Here, the defendants have established that they pursued the avenues available to assist the plaintiff in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement § 33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment". Defendants established that Mrs. Zarvos, the Labor Relations Specialist with CSEA, met with the plaintiff; spoke with Mr. Lescinski in an effort to negotiate reinstating the plaintiff and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited. As is well established, "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation" (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 446-447 [2d Dept., 1990]; Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]).

In opposition, the plaintiff failed to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The plaintiff has failed to present any evidence that the defendants acted in any way deliberately, arbitrary or in bad faith in not pursuing the grievance further and in fact, the plaintiff's failed to present any evidence or dispute the fact that the plaintiff was on probationary status (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 447 [2d Dept., 1990][dismissing the petition as no evidence of bad faith, arbitrariness or discriminatory conduct was presented]).

Accordingly, it is

ORDERED that the defendants CSEA Local 1000 and AFSCME AFL-CIO's motion for summary judgment seeking to dismiss the complaint in its entirety is hereby granted, and it is further

ORDERED that plaintiff's complaint is hereby dismissed in its entirety, and it is further

ORDERED that Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: June 15, 2010E N T E R, [*4]

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court