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October 3, 1994

JOHN J. POPPO, Plaintiff,

The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge:


 Plaintiff initiated this suit alleging that Defendant Long Island Rail Road Company ("LIRR") breached the collective bargaining agreement under which the Plaintiff was employed and obtained retirement benefits. Plaintiff also contends that the United Transportation Union ("UTU") breached its duty to fairly represent the Plaintiff in his efforts to compel arbitration regarding the alleged breach by LIRR. Before this Court are Defendants' motions to dismiss this case pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure, or in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.


 This dispute involves conflicting interpretations of a collective bargaining agreement between Defendant LIRR and Defendant UTU of which Plaintiff was a member. Plaintiff contends that the LIRR wrongfully denied him a pension with survivor benefits, a retiree free pass, and retiree medical benefits. Plaintiff further alleges that Defendant UTU has breached its duty to fairly represent his claims against the LIRR.

 Sixteen months after terminating his employment with LIRR, Plaintiff filed a request for survivor benefits. This request was rejected by the Joint Board on pension applications because Plaintiff had not filed in the proper time frame. No grievance was brought to the National Rail Road Adjustment Board. On July 18, 1978, Defendant UTU filed a request for a Public Law Board to hear Plaintiff's claim. The LIRR agreed to place the alleged violation regarding survivor benefits before the Board but refused a second allegation concerning retiree medical benefits. The grievances were never placed before a Public Law Board. 1978 was the last date upon which Plaintiff filed for elections.

 On March 7, 1980, the General Chairman of the UTU notified Plaintiff that the union was unable to locate a file on the plaintiff's case or anyone who knew anything about the case. In 1981 Plaintiff contacted the UTU to learn what efforts were being made on his behalf. Indeed, in his deposition, Plaintiff agreed that he told the union in 1981 or 1982 that he should have received a decision by that time. Dep. Tr. at 91. This was the last contact the Plaintiff had with the UTU until 1986.

 A month prior to his fiftieth birthday in April 1983, Plaintiff filed for his pension benefits which he began receiving on May 1, 1983. Plaintiff made no further attempts to alter his pension survivor benefits. Shortly thereafter Plaintiff was diagnosed with lymphoma.

 In 1986, Plaintiff hired his present attorney, Richard Rappaport. Soon after being retained, Mr. Rappoport spoke with the union officials and told Plaintiff that the UTU was not going to do anything. Dep. Tr. at 92. Plaintiff claimed in his deposition that he and his attorney agreed though, not to take an adversarial position vis-a-vis the UTU at that time. Yet, Plaintiff and his attorney waited an additional three years, until August 14, 1989, to initiate this action in this Court. No contact was had with the union during this time and no explanation is given as to the delay or what specific event, if any, triggered the filing.


 Plaintiff's claim against Defendant UTU is for breach of the duty to represent his claims for alleged breach of the collective bargaining agreement by LIRR. It is agreed by all of the parties and a well-established rule of law that the statute of limitations for such an action is six months from the accrual of the cause of action which is "when plaintiffs knew or reasonably should have known that such a breach had occurred, even if some possibility of non-judicial enforcement remained." Santos v. District Council of New York City, 619 F.2d 963, 968-69 (2d Cir. 1980); see also DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). The dispute here centers on when the Plaintiff knew or should have known of the breach and whether that date is within the statute of limitations.

 Defendants argue that the latest date that Plaintiff could be said to have discovered or became aware of a possible breach was 1986. Defendants point to plaintiff's deposition as proof that he and his attorney were aware of the fact that the ...

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