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

1452
CA 11-01179
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


ANTONIO MERCONE, PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

MONROE COUNTY DEPUTY SHERIFFS’ ASSOCIATION, INC.,
DEFENDANT-RESPONDENT.


FRANK A. ALOI, ROCHESTER, FOR PLAINTIFF-APPELLANT.

TREVETT CRISTO SALZER & ANDOLINA, P.C., ROCHESTER (DANIEL P. DEBOLT OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Matthew A. Rosenbaum, J.), entered September 2,
2010. The order and judgment dismissed the complaint after a nonjury
trial.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff, a former Monroe County Deputy Sheriff,
was discharged from that position by letter dated December 15, 2004.
Pursuant to paragraph 35.3.1 of the applicable collective bargaining
agreement (CBA) between Monroe County (County), the County Sheriff and
defendant, the union representing plaintiff, the parties had 10
business days from the date of plaintiff’s discharge to file a
grievance and demand arbitration thereof. Plaintiff testified at
trial that defendant’s outgoing president assured him that a grievance
had been timely filed on his behalf. When a new president assumed the
duties of office in February 2005, however, he discovered that no
grievance had been filed. The new president and other union officers
attempted to file a grievance with the County or demand arbitration on
several occasions, but they were unsuccessful. Defendant subsequently
filed a demand for arbitration with respect to plaintiff’s discharge
with the Public Employment Relations Board, and Supreme Court (Frazee,
J.) granted the petition of the County and the County Sheriff seeking
to stay arbitration. Plaintiff commenced this action on or about
August 9, 2005 seeking to recover damages for defendant’s breach of
the duty of fair representation. Plaintiff appeals from an order and
judgment dismissing the complaint.

     We reject the contention of plaintiff that Supreme Court
(Rosenbaum, J.) erred in determining that the action was time-barred.
An action against a union for breach of its duty of fair
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                                                         CA 11-01179

representation “shall be commenced within four months of the date the
. . . former employee knew or should have known that the breach has
occurred, or within four months of the date the . . . former employee
suffers actual harm, whichever is later” (CPLR 217 [2] [a]). Here,
“the harm complained of . . . occurred when defendant allegedly
breached its duty of fair representation by refusing to file the
grievance” within the time limits imposed by the CBA (Leblanc v
Security Servs. Unit Empls. of N.Y. State Law Enforcement Officers
Union, Council 82, AFSCME, AFL-CIO, 278 AD2d 732, 733). Thus,
plaintiff suffered actual harm when defendant failed to file the
grievance on or before December 30, 2004, which is 10 business days
after he was discharged.

     We reject plaintiff’s further contention that the court erred in
determining that he knew, or had reason to know, of defendant’s
failure to file a grievance more than four months prior to the
commencement of the action. Plaintiff testified at trial that he did
not learn of defendant’s failure to file a grievance until a later
date, but the court did not credit that testimony. It is well settled
that, although this Court’s authority in reviewing a nonjury trial is
the same as that of the trial court, “[w]here the findings of fact
‘rest in large measure on considerations relating to the credibility
of witnesses’ . . ., deference is owed to the trial court’s
credibility determinations” (Sterling Inv. Servs., Inc. v 1155 NOBO
Assoc., LLC, 65 AD3d 1128, 1129, lv denied 13 NY3d 714; see Storico
Dev., LLC v Batlle, 9 AD3d 908, 909; Ring v State of New York, 8 AD3d
1057, lv denied 3 NY3d 608). Here, there is ample support in the
record for the court’s credibility determinations, and we see no basis
upon which to disturb them.

     Contrary to plaintiff’s contention, the statute of limitations
was not tolled by the continuous representation doctrine. That
doctrine, “although originally derived from the continuous treatment
concept in medical malpractice cases, has also been held applicable to
professionals other than physicians” (Zaref v Berk & Michaels, 192
AD2d 346, 347). For statute of limitations purposes, the Court of
Appeals has defined professionals as those whose employment
qualifications “include extensive formal learning and training,
licensure and regulation indicating a qualification to practice, a
code of conduct imposing standards beyond those accepted in the
marketplace and a system of discipline for violation of those
standards . . . Additionally, a professional relationship is one of
trust and confidence, carrying with it a duty to counsel and advise
clients” (Chase Scientific Research v NIA Group, 96 NY2d 20, 29).
Even assuming, arguendo, that the relationship between plaintiff and
defendant is one of trust and confidence with a duty to counsel and
advise, we conclude that the record fails to establish that
defendant’s representatives held any of the other employment
qualifications, and thus we decline to expand the continuous
representation doctrine to include union representatives (see
generally Pike v New York Life Ins. Co., 72 AD3d 1043, 1048; Eastman
Kodak Co. v Prometheus Funding Corp., 283 AD2d 216). We have
considered plaintiff’s further contentions with respect to the statute
of limitations and conclude that they are without merit.
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                                                         CA 11-01179

     Plaintiff’s remaining contentions are academic in light of our
determination.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
