The opinion of the court was delivered by: CARTER
In this removed action defendants, Hilaire Farm Nursing Home ("Hilaire") and Michael Gottsegen, Administrator (employer defendants) and Local 1199, National Union of Hospital and Health Care Employees ("Local 1199"), Doris Turner, President, Edward Kaye, Inez Murphy and Mark B. Brodie ("union defendants") have moved to dismiss and/or for summary judgment. The return date for the motions was initially July 26, 1985. Counsel for the employer defendants consented to a two week adjournment. (Letter August 20, 1985 from Robert Fishler). There is no indication that any request for an adjournment was addressed to or consented to by the union defendants. There is no record in the court filed that the adjournment was so ordered by the court.
In any event, the two weeks came and went without any response being filed by plaintiff and without any request for a further extension. On August 16, 1985, plaintiff's counsel wrote counsel for the employer defendants seeking a "nunc pro tunc" adjournment (Id.) and on August 20, 1985, counsel for the union defendants received a similar request. (Letter dated August 20, 1985 from Christopher Hitchcock). Both refused to grant the request. On August 21, 1985, plaintiff's counsel filed a memorandum of law in opposition to the motions but failed to file a 3(g) statement contesting the 3(g) statements of defendants.
Failure to comply with Local and Federal Rules of Civil Procedure appears to be standard practice for plaintiff's counsel, at least this has been so in those cases in which she has appeared before me. Dilatoriness in responding to interrogatories on plaintiff's part led to an earlier motion for sanctions. The problem may well be that plaintiff's counsel, as a single practitioner, finds it difficult to keep abreast of her cases on file in this court. While I have some sympathy for counsel, if that is the problem, it is inexcusable for counsel to wait until she is in default before seeking consent for additional time. Since an extension has to be so ordered by the court, plaintiff was in default on these motions as of July 26, 1985. The court, however, is willing to give ex post facto assent to the two week adjournment (making opposing papers due on August 9, 1985). However, since counsel did not honor her commitment to file her papers on August 9, and did not seek permission to lengthen her time to file her papers until at least a week after their due date, and in fact did not file her papers until 12 days after their adjourned due date, the court refused to accept or consider the memorandum filed on August 21.
Plaintiff is a former employee of Hilaire, which is located in Huntington, New York. She was a nurse's aid at the facility from January 2, 1973, until November 25, 1983. During her employment, she was a member in good standing of Local 1199. Plaintiff was discharged on January 7, 1982. The reason for the discharge was a complaint that plaintiff had touched a patient's breast in lifting her onto her bed. Hilaire notified Local 1199 of its action by mailgram dated January 11, 1982, as required by Article 29 of the collective bargaining agreement. Two weeks thereafter, at Local 1199's request, a grievance meeting was held with Hilaire to discuss the discharge. At that meeting plaintiff was represented by Mark Brodie, a Local 1199 official. As a result of the meeting, Hilaire agreed to reinstate plaintiff with one week's backpay and to pay the plaintiff the second week of backpay if an investigation by the New York State Department of Health initiated by Hilaire of the charge which led to plaintiff's discharge exonerated her. Plaintiff agreed to these conditions and returned to work.
Plaintiff gave a statement to an investigator of the New York State Department of Health. She was accompanied by Brodie when she gave the statement.
On April 5, 1983, the State Department of Health wrote Hilaire advising that its investigation had found "insufficient credible evidence that inappropriate physical contact with a patient had occurred as described in the regulations pertaining thereto." On receipt of this communication, Hilaire paid plaintiff the second week of backpay.
On March 20, 1983, plaintiff requested a one month's leave of absence. Hilaire granted the request. By letter dated April 16, 1983, plaintiff asked for an extension of her leave. This request was also granted and Hilaire agreed to keep plaintiff's position open until September 20, 1983.
By letter dated August 25, 1983, an attorney representing plaintiff requested a meeting with Michael Gottsegen prior to plaintiff's return to work. At that meeting, which Edward Kaye attended as a representative of Local 1199, plaintiff agreed to return to work on November 28, 1983. However, in an apparent change of mind, plaintiff tendered her resignation orally on November 25, 1983, which was confirmed in writing by letter dated November 28, 1983.
The written notice concerning the alleged patient abuse incident of January 6 or 7, 1982, was circulated to union officials and representatives and to supervisory personnel of Hilaire, and not to the general public.
Plaintiff concedes that subsequent to her resignation, she has not sought employment as a nurse's aide. Plaintiff had never requested reemployment at Hilaire, nor has she requested any recommendations or references from ...