In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated September 25, 2007, as, upon, in effect, converting the defendants' separate motions pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against each of them into motions for summary judgment dismissing the complaint insofar as asserted against each of them, granted the motions, and denied, as academic, that branch of the plaintiff's cross motion which was to compel arbitration.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, STEVEN W. FISHER and MARK C. DILLON, JJ.
ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the defendants' converted motions which were for summary judgment dismissing the first, second, third, fifth, sixth, and seventh causes of action insofar as asserted against each of them and substituting therefor provisions denying those branches of the motions, and (2) by deleting the provision thereof denying, as academic, that branch of the plaintiff's cross motion which was to compel arbitration and substituting therefor a provision denying that branch of the plaintiff's cross motion on the merits; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff.
In January 1995 the plaintiff began working for the defendant Kings Park Central School District (hereinafter Kings Park) as a temporary or substitute custodian. In August 1996 the plaintiff was hired as a permanent custodian with union benefits, and began paying dues to the defendant CSEA, Local 1000, AFSCME, AFL-CIO (hereinafter CSEA). The plaintiff took a one-year unpaid leave of absence from May 26, 2001, through May 20, 2002.
In November 2005 the plaintiff attended a CSEA meeting, at which Rebecca Sobotkin, the CSEA unit president, announced that, pursuant to the collective bargaining agreement (hereinafter CBA) between Kings Park and CSEA, Kings Park would pay a $13,000 retirement bonus to any employee with 10 years of service who notified Kings Park by March 1, 2006, of his or her intent to retire by January 1, 2007. The CBA provided, in pertinent part, that:
"A retirement bonus shall be granted eligible employees covered by this contract. An eligible employee is one covered by this contract who is eligible to retire . . . and has completed 10 years of service in Kings Park School District. . . . Ten years of completed service means continuous service except that persons on an approved leave . . . shall neither lose accrued time nor gain time because of said leave."
On February 28, 2006, based on his belief that he qualified for the retirement bonus, the plaintiff submitted a letter notifying Kings Park of his intent to retire, effective December 29, 2006. The plaintiff subsequently learned from Kings Park that he did not qualify for the bonus, since his first 18 months on the job, which he spent in a temporary or substitute capacity, did not count toward the service requirement, and therefore he would be credited with only 9 years and 4 months of service. The plaintiff made an inquiry about rescinding his retirement, but was told that he could not do so.
Sobotkin advised the plaintiff that CSEA would not oppose Kings Park's determination regarding the bonus. According to Sobotkin, the plaintiff did not request that CSEA file a grievance on his behalf. Instead, in January 2007, the plaintiff commenced this action against Kings Park and CSEA, seeking, inter alia, damages for breach of contract and fraud against Kings Park, rescission of his retirement, reinstatement of his employment with Kings Park, and, in effect, damages for breach of the duty of fair representation against CSEA.
At a hearing pursuant to General Municipal Law § 50-h, the plaintiff gave the following testimony. The plaintiff first learned that he was not eligible for the retirement bonus in April 2006, when he asked a Kings Park employee in charge of payroll for a letter confirming that he would receive the bonus, and was informed that he had not yet accrued 10 years of service. The plaintiff subsequently asked Sobotkin to assist him in obtaining a written confirmation of his entitlement to the bonus, but she advised him that he would have to obtain the letter on his own. The plaintiff did not speak to anyone at Kings Park about the bonus again until October 2006, when he was informed by the secretary to the school superintendent that the superintendent "wanted to get [him] the [bonus] by using the 18 months that [he] put in as a temp, but that the union was against it." When the plaintiff asked Sobotkin why CSEA was "fighting" the superintendent's effort to get him the bonus, she replied: "I have to fight it because if I give it to you, I have to give it to everybody else." Although Sobotkin acknowledged that there was currently no one else in the plaintiff's situation, she explained that she did not want to "set a precedent." The plaintiff was subsequently advised that the superintendent had determined that he was not entitled to the retirement bonus. In November 2006 Sobotkin informed the plaintiff that CSEA did not intend to challenge the superintendent's determination.
Kings Park moved to dismiss the complaint insofar as asserted against it on the grounds, among others, that the plaintiff failed to exhaust his administrative remedies and lacked standing to assert claims arising under the CBA. CSEA moved to dismiss the complaint insofar as asserted against it on the ground, among others, that it did not breach its duty of fair representation. The plaintiff cross-moved, inter alia, to compel arbitration with Kings Park. The Supreme Court, in effect, converted the defendants' motions into motions for summary judgment dismissing the complaint insofar as asserted against each of them (see CPLR 3211[c]), granted the motions, and denied the plaintiff's cross motion as academic. The plaintiff appeals.
The Supreme Court concluded that the defendants were entitled to summary judgment dismissing the complaint since, as a matter of law, the plaintiff had not completed 10 years of service pursuant to the CBA, and therefore was not eligible for the retirement bonus. We disagree. When a contract, "read as a whole to determine its purpose and intent," plainly manifests the intent of the parties, relief may be granted by way of summary judgment (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162). Where, however, the contractual provision relied upon is ambiguous, "the resolution of the ambiguity is for the trier of fact" (State of New York v Home Indem. Co., 66 NY2d 669, 671; see Nappy v Nappy, 40 AD3d 825, 826). Here, the CBA provided, in relevant part, that an employee is eligible to receive a retirement bonus when he or she "has completed 10 years of service in Kings Park School District." The CBA defined "10 years of completed service" as "continuous service." The CBA did not define "continuous service," and contained no language indicating that "continuous service" included only service as a permanent employee. Accordingly, the CBA was ambiguous, since it was silent on the issue of whether "continuous service" included service in a temporary or substitute capacity. Indeed, according to the school superintendent, Kings Park's determination that "continuous service" referred only to permanent service was not based on any language in the CBA, but was made "pursuant to past practice." Similarly, according to ...