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GENTILVISO v. NEW YORK PUB. LIBRARY

June 25, 1984

RICHARD GENTILVISO, Plaintiff, against THE NEW YORK PUBLIC LIBRARY, ASTOR, LENOX AND TILDEN FOUNDATIONS: and DISTRICT COUNCIL 37 OF THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Defendants.


The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

MARY JOHNSON LOWE, D.J.

 BACKGROUND

 This is an action brought by plaintiff Richard Gentilviso to recover damages allegedly arising out of the termination of his employment with defendant New York Public Library, Astor, Lenox and Tilden Foundations (the "Library"). Plaintiff makes three claims for relief. *fn1" His first claim against the Library, alleges that his termination was in violation of the collective bargaining agreement between the library and District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO (the "Union"). Plaintiff's second cause of action, also against the Library, alleges that the Library's actions constituted an unfair labor practice under Section 8 of the National Labor Relations Act ("the NLRA"), 29 U.S.C. § 158. Plaintiff's last claim (his fifth cause of action) is against the Union. He alleges that the Union's refusal to represent him at an arbitration hearing at which he challenged his discharge violated the Union's duty of fair representation under Section 7 of the NLRA, 29 U.S.C. § 157.

 This action was commenced in the Supreme Court of the State of New York, New York County, in January, 1984 and removed to this Court on joint petition of the defendants, in February, 1984. Thereafter, in March, 1984 plaintiff filed a "Notice of Objection to Removal". In his supporting papers, plaintiff argued that since plaintiff's attorney is not admitted to practice in this Court, removal would work an extreme prejudice on plaintiff by denying him the right of representation by counsel of his choice. The Court notified plaintiff's attorney, by way of conference call with all parties, that, assuming he was attempting to make a motion for remand, his papers were procedurally improper. In addition, the Court noted that the mere fact that plaintiff's attorney was not admitted to practice in this Court would not constitute grounds for a remand. Plaintiff thereupon agreed to withdraw his objections, and seek admittance to the Court, at least on a pro hac vice basis.

 In the meantime, the Library moved for summary judgment on plaintiff's first claim for breach of the collective bargaining agreement, on the ground that the claim is time-barred under the Supreme Court's recent decision in DelCostello v. IBT, 103, S. Ct. 2281, 2291 (1983). In addition, the Library moved to dismiss plaintiff's second claim under Section 8 of the NLRA on the ground that the NLRB has sole jurisdiction to adjudicate the unfair labor practice charge, and plaintiff's third claim on the ground that the New York labor law claim is preempted by federal law.

 The Union similarly moved for summary judgment on plaintiff's fourth and fifth claims on the ground that those claims, alleging breach of the union's duty of fair representation, are time-barred under DelCostello, and for dismissal of the state labor law claim in plaintiff's fourth cause of action, on the ground that it is preempted by federal law. In addition, the Union moved for dismissal of all claims against it, for lack of personal jurisdiction, because of insufficiency of service of process.

 Plaintiff submitted a memorandum in opposition to defendants' motions, but failed to submit a counter-statement pursuant to Civil Rule 3(g) of this Court. *fn2" Plaintiff subsequently requested permission to file an untimely 3(g) statement. Defendants vigorously opposed this request, arguing that under the express terms of Rule 3(g), material facts set forth in the 3(g) statement of a party moving for summary judgment are deemed "admitted unless controverted by the statement required to be served by the opposing party." In addition defendants cite recent Second Circuit authority which supports the argument that the appropriate response to a party's failure to file a counter-statement pursuant to Rule 3(g), is to deem the facts in the movant's 3(g) statement admitted. See Gatling v. Atlantic Richfield Co., 577 F.2d 185, 187 (2d Cir.), cert. denied, 439 U.S. 861, 58 L. Ed. 2d 169, 99 S. Ct. 181 (1978); Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir. 1984); S.E.C. v. Research Automation Corp., 585 F.2d 31, 34 (2d Cir. 1978); Lehman Brothers Kuhn Loeb, Inc. v. Fargason, No. 80 Civ. 3520, slip op. (S.D.N.Y. January 14, 1981). Woods v. State of New York, 469 F. Supp. 1127 (S.D.N.Y.), aff'd mem. 614 F.2d 1293 (2d Cir. 1979). Plaintiff argues that his failure to comply with Rule 3(g) was due to inadvertance, and should therefore be excused. He relies on Rule 60(b)(1) of the Fed.R.Civ.P. which authorizes a federal district court to vacate a default judgment, when the default was due to "inadvertance." In addition, he points out that courts are generally permitted broad discretion in these matters. Plaintiff argues by analogy that the Court has the discretion to allow him to correct his inadvertant error and file a 3(g) statement, so that a determination on the merits of defendants' motions may be made.

 In light of the express terms of Rule 3(g) and the cases arising thereunder which have applied the Rule literally, and because plaintiff's attorney can offer no justification for his failure to comply with Rule 3(g) other than lack of familiarilty with the rules of this Court, we believe it would be an abuse of discretion for the Court to allow plaintiff to file an untimely 3(g) statement without mutual consent of the parties. Therefore, the facts in the movants' 3(g) statements will be deemed admitted. We note that plaintiff in his memorandum does not appear to be challenging any of the specific facts contained in defendants' 3(g) statements. Rather, he seeks to put forth additional facts which he believes have a bearing on when his claims accrued. As the following discussion will make clear, these additional facts, even if considered, would not effect the outcome of this case. Therefore, plaintiff will suffer no prejudice by reason of the Court's ruling with regard to the 3(g) statement.

 FACTS

 The relevant facts are stated in the Library's 3(g) statement as follows:

 1. Defendant Library is an employer in an industry affecting commerce within the meaning of Section 301(a) of the Labor Management Relations Act of 1947, as amended (the "LMRA") 29 U.S.C. § 185(a) with offices in the City, County and State of New York.

 2. Defendant Union is a labor organization representing employees in an industry affecting commerce within the meaning of Section 301(a) the LMRA with offices in the City, County and State of New York. Local 1930 is a labor organization whosse members consist of certain employees of Defendant Library and is affiliated with defendant Union.

 3. Defendant Library, Local 1930 and Defendant Union are parties to a collective bargaining agreement effective July 1, 1980 applicable to a bargaining unit of certain professional, clerical and technical employees of Defendant Library.

 4. Plaintiff was employed with Defendant Library as a Library Information Assistant, a position within the bargaining unit covered by ...


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