        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

37
CA 13-01118
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


PHILIP BUFF, PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

VILLAGE OF MANLIUS AND MARK-PAUL SERAFIN,
MAYOR, VILLAGE OF MANLIUS,
DEFENDANTS-RESPONDENTS.


THOMAS J. JORDAN, ALBANY, FOR PLAINTIFF-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (COLIN M. LEONARD OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (Brian
F. DeJoseph, J.), entered February 11, 2013. The order granted
defendants’ motion to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiff, a retired employee of defendant Village
of Manlius (Village), commenced this breach of contract action seeking
to compel defendants to pay 80% of plaintiff’s health insurance plan
premiums. Plaintiff alleged that defendants paid that percentage when
he was employed, pursuant to the terms of a collective bargaining
agreement (CBA) between the Village and the union representing Village
firefighters (union). Defendants moved to dismiss the complaint on
the ground that the grievance procedure provided for in the CBA was
the exclusive procedure by which plaintiff could seek redress, and
that plaintiff was required to bring his claim through the grievance
procedure despite his status as a retiree. Plaintiff opposed
defendants’ motion, arguing, inter alia, that the CBA restricted the
class of individuals who could file a grievance to active employees.
Supreme Court determined that the language of the CBA contained no
such restriction and granted defendants’ motion. We conclude that the
court erred in interpreting the CBA, and we therefore reverse the
order, deny defendants’ motion, and reinstate the complaint.

     It is well settled that, “when an employer and a union enter into
a collective bargaining agreement that creates a grievance procedure,
an employee subject to the agreement may not sue the employer directly
for breach of that agreement but must proceed, through the union, in
accordance with the contract” (Matter of Board of Educ., Commack Union
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                                                         CA 13-01118

Free Sch. Dist. v Ambach, 70 NY2d 501, 508, cert denied sub nom.
Margolin v Board of Educ., Commack Union Free Sch. Dist., 485 US 1034;
see also Clark v County of Cayuga, 212 AD2d 963, 963). There are,
however, two exceptions to that rule. The first exception applies
when “the contract provides otherwise” (Ambach, 70 NY2d at 508), i.e.,
the contract “either expressly allows such suits or implicitly does so
by excluding the dispute at issue from, or not covering it within, the
ambit of the contractual dispute resolution procedures” (Ledain v Town
of Ontario, 192 Misc 2d 247, 251, affd 305 AD2d 1094). The second
exception applies “when the union fails in its duty of fair
representation” (Ambach, 70 NY2d at 508), but the employee must allege
and prove that the union breached its duty to provide fair
representation to the employee (see Ledain, 192 Misc 2d at 251; see
also Matter of Reese v Board of Trustees of Mohawk Val. Community
Coll., 28 AD3d 1240, 1241, lv denied 7 NY3d 709; Matter of Prendergast
v Kingston City Sch. Dist., 242 AD2d 773, 774; Clark, 212 AD2d at
963). We agree with defendants that plaintiff did not allege that the
union breached its duty of fair representation, and therefore only the
first exception is at issue here.

     In relevant part, the CBA defines the term “grievance” broadly as
“a controversy, dispute or difference arising out of the
interpretation or application of this contract.” The first step of
the grievance procedure requires either the union or a “member” to
present the grievance in writing. “It is well established that[,]
when reviewing a contract, ‘[p]articular words should be considered,
not as if isolated from the context, but in the light of the
obligation as a whole and the intention of the parties manifested
thereby’ ” (Kolbe v Tibbetts, 22 NY3d 344, 353, quoting Riverside S.
Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398, 404; see
Matter of El-Roh Realty Corp., 74 AD3d 1796, 1799). Furthermore, we
“must give the words and phrases employed their plain meaning” (Laba v
Carey, 29 NY2d 302, 308, rearg denied 30 NY2d 694; see Fingerlakes
Chiropractic v Maggio, 269 AD2d 790, 792). Elsewhere in the CBA, the
word “member” is used interchangeably with the word “employee,” and
several CBA provisions that apply to “members,” such as provisions for
holiday pay and annual physicals, clearly affect only active
employees. In addition, the CBA provides that the Village recognizes
the union “as the exclusive representative for collective negotiations
with respect to salaries, wages, and other terms and conditions of
employment of all full-time and part-time employees” (emphasis added).

     Giving the word “member” its plain meaning, and interpreting the
contract as a whole, we agree with plaintiff that the word “member”
means a member of the union. It is undisputed that plaintiff ceased
to be a member of the union after his retirement. Thus, according to
the clear and unambiguous terms of the CBA, plaintiff, who was no
longer a “member” of the union when he became aggrieved, could not
file a grievance. We therefore further agree with plaintiff that our
decision in Matter of DeRosa v Dyster (90 AD3d 1470) is controlling
here. In that case, the first step of the grievance procedure as
provided for in the collective bargaining agreement required “an
aggrieved ‘employee’ to request ‘a review and determination of his [or
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                                                         CA 13-01118

her] grievance by the head of the appropriate department’ ” (id. at
1472). The majority concluded that, because the petitioner was no
longer an “employee” when she became aggrieved, she “could not have
pursued a grievance” (id.). In this case, as in DeRosa, “the
grievance procedure set forth in the CBA is predicated upon the status
of the affected beneficiar[y . . . ,] as [an] active employee or
retiree” (id. [internal quotation marks omitted]).

     We conclude that the court erred in determining that this case is
distinguishable from DeRosa on the ground that the section of the CBA
that provides for health insurance benefits after retirement also uses
the word “member.” In DeRosa, the collective bargaining agreement
expressly permitted “grievances concerning retirement benefits” and
expressly provided for health insurance benefits after retirement (see
id. at 1471-1472). The majority nevertheless held that, because only
an individual “employee” could file a grievance, the petitioner could
not have filed a grievance before commencing a CPLR article 78
proceeding (id. at 1472). Thus, the fact that the CBA expressly
provides for health insurance benefits after retirement does not
necessarily mean that an individual retiree will be permitted to use
the grievance procedure to enforce those provisions. Rather, here, as
in DeRosa, the clear and unambiguous terms of the CBA prevented
plaintiff from filing a grievance (see id.; cf. Ledain, 192 Misc 2d at
255).

     Defendants’ reliance on Matter of City of Ithaca (Ithaca Paid
Fire Fighters Assn., IAFF, Local 737) (29 AD3d 1129) is misplaced. In
that case, the court did not hold that the aggrieved retirees were
required to bring their claims through the grievance procedure.
Rather, in the context of the former employer’s motion to stay
arbitration on the ground that the dispute was not subject to
arbitration because the aggrieved retirees were not represented by the
union, the court held that “issues such as respondent’s relationship
to retired employees . . . [and] whether retirees are covered by the
grievance procedure . . . are matters which concern the precise scope
of the substantive contractual provisions and, as such, are for the
arbitrator” to decide (id. at 1132; see Matter of Mariano v Town of
Orchard Park, 92 AD3d 1232, 1233-1234; Matter of Jefferson-Lewis-
Hamilton-Herkimer-Oneida BOCES [Jefferson-Lewis-Hamilton-Herkimer-
Oneida BOCES Professional Assn., Local 2784], 247 AD2d 829, 829).

     We reject plaintiff’s contention, however, that the court erred
when it declined to consider the extrinsic evidence he submitted to
support his position that retirees could not file a grievance.
“[E]xtrinsic evidence may not be considered unless the document itself
is ambiguous,” and “ ‘extrinsic and parol evidence is not admissible
to create an ambiguity in a written agreement which is complete and
clear and unambiguous upon its face’ ” (South Rd. Assoc., LLC v
International Bus. Machs. Corp., 4 NY3d 272, 278; see W.W.W. Assoc. v
Giancontieri, 77 NY2d 157, 163). We conclude that the CBA’s use of
the word “member” to describe which individuals may file a grievance
unambiguously excludes plaintiff, and thus extrinsic evidence may not
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                                                         CA 13-01118

be considered in support of either party’s position.




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
