                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 23, 2015                       518293
________________________________

STEPHANIE L. ZITO,
                      Appellant,
     v

NEW YORK CITY OFFICE OF PAYROLL               MEMORANDUM AND ORDER
   ADMINISTRATION et al.,
                    Respondents,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   May 27, 2015

Before:   Peters, P.J., Lahtinen, Garry and Devine, JJ.

                               __________


     Stephanie L. Zito, Davenport, appellant pro se.

      Zachary W. Carter, Corporation Counsel, New York City
(Elizabeth I. Freedman of counsel), for New York City Office of
Payroll Administration and others, respondents.

                               __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Lambert, J.),
entered December 6, 2013 in Delaware County, which, among other
things, granted defendants' motions to dismiss the complaint.

      From 1987 through 1992, plaintiff was employed part time by
defendant New York City Department of Education (hereinafter DOE)
as a substitute teacher and was required to pay a Federal
Insurance Contributions Act (hereinafter FICA) tax on her
earnings. In 1988, the Court of Appeals held that part-time city
employees were entitled to join the New York City Employees'
Retirement System (see Doctors Council v New York City Employees'
                               -2-                518293

Retirement Sys., 71 NY2d 669, 677 [1988]) and, as a result of
that decision, the Social Security Administration and the
Internal Revenue Service determined that part-time city employees
were entitled to a refund of FICA taxes that they had erroneously
paid. To obtain the refund, eligible part-time employees were
required to sign a consent form authorizing defendant New York
City Office of Payroll Administration (hereinafter OPA) to apply
for the refund on his or her behalf.

      With assistance from DOE and defendant United Federation of
Teachers (hereinafter UFT), OPA identified plaintiff as an
employee eligible for the refund and mailed letters to her last
known address in 1994, 1997 and 1998, requesting that she
complete and return the enclosed claim authorization form.
Plaintiff, who had moved in 1992, never received the letters and,
thus, did not submit a claim authorization form before the
Internal Revenue Service and the Social Security Administration
ceased accepting refund claims in 2006. Plaintiff learned of the
refund program in 2007 and, in the years that followed, made
numerous unsuccessful efforts to obtain her refund.

      Plaintiff commenced this action against DOE, OPA and
defendants New York City Comptroller John C. Liu and former New
York City Comptroller William C. Thompson Jr. (hereinafter
collectively referred to as the City defendants), as well as UFT,
asserting causes of action sounding in, among other things,
negligence and breach of fiduciary duty. The City defendants and
UFT separately moved to dismiss the complaint, and plaintiff
moved for a default judgment against the City defendants on the
basis that their motion was untimely served. Supreme Court
denied plaintiff's motion and granted defendants' motions.
Plaintiff appeals.1

      We affirm, albeit primarily on different grounds than
relied upon by Supreme Court. Initially, the causes of action
sounding in negligence, fraud, breach of fiduciary duty and


     1
        This Court granted plaintiff's motion to withdraw and
discontinue her appeal against UFT (2015 NY Slip Op 65159[U]
[2015]).
                              -3-                518293

breach of the duty of fair representation – specifically, the
second, third, fourth and seventh causes of action – must be
dismissed against the City defendants because plaintiff did not
serve a notice of claim upon them (see General Municipal Law §
50-e [1] [a]; Montano v City of Watervliet, 47 AD3d 1106, 1109
[2008]; Serkil, L.L.C. v City of Troy, 259 AD2d 920, 922 [1999],
lv denied 93 NY2d 811 [1999]). Indeed, service of a notice of
claim upon a municipality is a condition precedent to maintaining
a tort claim against municipal defendants (see General Municipal
Law §§ 50-e [1] [a]; 50-i [1]; Barchet v New York City Tr. Auth.,
20 NY2d 1, 4 [1967]; Smith v Town of Long Lake, 40 AD3d 1381,
1384 [2007]; Matter of Tara V. v County of Otsego, 12 AD3d 984,
985 [2004]).

      Plaintiff's remaining causes of action must be dismissed
for failure to state a claim. In resolving a motion to dismiss
for failure to state a cause of action, we "liberally construe
the complaint, 'accept the facts as alleged in the complaint as
true, accord [the] plaintiff[] the benefit of every possible
favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory'" (Beesmer v
Besicorp Dev., Inc., 72 AD3d 1460, 1461-1462 [2010], quoting Leon
v Martinez, 84 NY2d 83, 87-88 [1994] [internal citation
omitted]). However, we will not accept as true factual
allegations and legal conclusions that are "'inherently
incredible or flatly contradicted by documentary evidence'"
(Mesiti v Mongiello, 84 AD3d 1547, 1549 [2011], quoting Quail
Ridge Assoc. v Chemical Bank, 162 AD2d 917, 918 [1990], lv
dismissed 76 NY2d 936 [1990]).

      Applying these principles here, we conclude that
plaintiff's first, fifth, sixth and eighth causes of action fail
to state a claim. In her first cause of action, plaintiff merely
alleges damages, without specifying how she is legally entitled
to them (see Union Brokerage v Dover Ins. Co., 97 AD2d 732, 733
[1983]). Plaintiff's fifth cause of action, in which she alleged
that OPA, Thompson and Liu violated their duties "in the
management and disposition of corporate assets committed to
[their] charge" (Banking Law § 7017 [1] [a] [1]), also fails, as
plaintiff did not timely authorize the United States Treasury to
release her FICA refund to OPA. As for her sixth cause of
                              -4-                  518293

action, even if properly asserted against OPA and DOE, Labor Law
§ 727 does not provide plaintiff with a private right of action
to enforce a union "officer's financial reporting and accounting
obligations" (Ash v Scanlon, 19 AD3d 187, 188 [2005]). Finally,
plaintiff's eighth cause of action, which alleged that the City
defendants violated the Court of Appeals' ruling in Doctors
Council v New York City Employees' Retirement Sys. (71 NY2d 669
[1988], supra), patently lacks merit because OPA obtained
plaintiff's last known address from DOE and UFT, sent a claim
authorization form to this address on three separate occasions
and obtained FICA refunds for eligible employees who completed
and returned the form. Accordingly, the City defendants' motion
to dismiss the complaint was properly granted.

      Plaintiff's remaining contentions, to the extent they have
not been rendered academic by our decision, have been considered
and rejected.

     Lahtinen, Garry and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
