| Naclerio v Adjunct Faculty Assn. |
| 2003 NY Slip Op 51644(U) |
| Decided on December 17, 2003 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the Official Reports. |
Appeal by defendant from a small claims judgment of the District Court, Nassau County (K. Gartner, J.), entered December 16, 2002, awarding plaintiff the principal sum of $3,000.
Judgment unanimously reversed without costs and action dismissed.
Substantial justice was not done between the parties in accordance with the rules and principles of substantive law (UDCA 1804; 1807) in this small claims action seeking damages for defendant collective bargaining organization's alleged breach of the duty of fair representation.
Plaintiff failed to show that defendant's conduct was "arbitrary, discriminatory or in bad faith" (Clissuras v City of New York, 131 AD2d 717, 718 [1987], citing Matter of Civil Serv. Bar Assn., Local 237, Tnt. Brotherhood of Teamsters v City of New York, 64 NY2d 188 [1984]).
Mere negligence, if any, on the part of defendant in failing to include plaintiffs name on the list of bargaining unit member payees in an "overload" grievance arbitration proceeding against Nassau Community College (see generally Matter of Meehan v Nassau Community Coll., 243 AD2d 12 [1998]) is insufficient to support plaintiffs claim (see Symanski v East Ramapo Cent. School Dist., 117 AD2d 18 [1986]). Plaintiffs bare assertion that the union's methodology in compiling the list of payees was "totally flawed," with no basis given for this assertion, is insufficient to show bad faith, arbitrariness, or discrimination by the union. Nor was the union's decision that plaintiff, who raised the issue only in 2000, some four years after the initial arbitrator's award, had not demonstrated any entitlement to have the extensively litigated proceedings re-opened, an exercise of arbitrariness, discrimination or bad faith (see id.; see also Arizaga v New York City & Hosps. Corp., 96 AD2d 457 [1983]).
Furthermore, the court below improperly shifted the burden to defendant to prove its [*2]innocence upon plaintiffs mere allegation, unsupported by any evidence, that defendant had acted improperly. Even in the relatively relaxed and informal atmosphere of the small claims forum, plaintiff bore the burden of establishing his case by a preponderance of the evidence (see e.g. Ellis v Collegetown Plaza, 301 AD2d 758 [2003]).
Decision Date: December 17, 2003