The Decision/Order on this Motion is as follows:

Defendant moves for an order pursuant to CPLR 3211(a) (5) to dismiss the within case on the ground that the cause of action has surpassed the statute of limitations period.

In the underlying action, claimant Ernestine Loreto ("Loretto") sues Lily Pond Nursing Home, LLC ("Lily Pond") for breach of the collective bargaining agreement ("the contract") in order to recover "monies arising out of failure to pay medical benefits, diminishment of health, Feb. 2007-Feb. 2008". [*2]

The claimant herein was a licensed nurse in Lily Pond for eighteen years between 1990 and 2008. Loretto alleges that the defendant ceased paying contributions into the union medical insurance fund. As a result, the union terminated medical coverage for its members and Loretto lost her medical insurance and incurred out of pocket expenses due to that loss. The contract provides the terms, conditions and obligations relating to claims and payment for benefits.

On July 16, 2009, this case was tried before Judge Philip S. Straniere. Both sides appeared pro se. Judge Straniere issued a decision dated August 5, 2009, wherein he dismissed claimant's case, stating that claimant failed to prove her prima facie case. The dismissal was, however, without prejudice to renew if claimant could provide the necessary proof to make out her claim.

Claimant brought an Order To Show Cause to reargue her case. The case appeared on the Small Claims calendar on January 14, 2010, April 15, 2010 and June 3, 2010 at which time the instant motion was heard. Judge Straniere's decision provides claimant with the opportunity to renew her case.

The crux of the defendant's argument is that the cause of action is barred by the statute of limitations. Defendant argues that this action is governed by a six month statute of limitations and contends that this action was filed on December 9, 2008, which is four months longer than the six month statute of limitations period. The claimant is seeking monetary damages covering the period from Feb. 2007-Feb. 2008. Lily Pond further argues that federal law preempts New York State law in this case because §301 of the Labor Management Relations Act ("LMRA") grants federal jurisdiction when the claimant alleges that the employer breached the collective bargaining agreement. Defendant asserts this type of case is a "hybrid case", one in which the employee has a claim against the employer and the union, which triggers the four month statute of limitations. Defendant maintains that the claimant cannot bypass the statute of limitations period by suing only the employer and is therefore barred from commencing the action.

Claimant argues that under CPLR § 213(2), all contractual claims must be brought within a six year period. Loretto maintains that even though the action is governed by the contract between the union and the employer, Article 29 of the collective bargaining agreement allows for a private action for employees against the employer when benefits are denied. That clause reads as follows:

If any employee is disentitled to any benefits provided by the funds by reason of an Employer's delinquency in the payment of contributions, such Employer shall be liable to such employee, in a civil action, for the full amount of the benefits which the Employee lost, together with court costs.

Claimant states that defendant's use of § 301 of the LMRA is erroneous because the Act is only triggered when there is an assertion that both the employer and the union breached its duty to the employee. Claimant lastly states that recovery for medical, dental, and pharmacy expenses can only be asserted by the employee, not the union.

On a motion to dismiss pursuant to CPLR 3211(a)(1) a plaintiff is conferred"the benefit of every possible favorable inference"(Goshen v. Mutual Life Ins. Co. of NY,98 NY2d 314, 326, [*3]quoting Leon v. Martinez, 84 NY2d 83, 87). The allegations in the complaint should be deemed as true in light of the plaintiff. In addition, the defendant bears the burden of establishing that the time in which to sue has expired. (Swift v. New York Med Coll., 25 AD3d 686, 687 (2006)).

A claim brought under § 301 of the LMRA allows for an action to be commenced on a "hybrid case" theory, but the claimant must make a prima facie case to show an alleged breach of the collective bargaining agreement by the employer and an allegation that the union failed to properly represent its member. (Paul McKee v. Transco Products, Inc., 874 F.2d 83, 86). A hybrid claim can exist even though a suit is only filed against the employer. However, the cause of action against the union and the employer must be intimately joined. 874 F.2d 83, 86.

In DelCostello v Int'l Bhd. Of Teamsters, 462 U.S. 151, the Supreme Court held that under § 301, a hybrid claim brought against an employer for unlawful termination and against a union based on an implied theory of inadequate representation, is governed by a six month statute of limitations. 462 U.S at 172. In McKee v. Transco Products, Inc., 874 F.2d 83-85, the plaintiffs brought action against their employer for an alleged breach of the collective bargaining agreement and were deemed to be governed by a six month statute of limitations. The Second Circuit classified McKee as a hybrid case because the plaintiffs filed an unfair labor practice charge with the National Labor Relations Board due to unsatisfactory union representation.

Defendant's argument that the case at bar is a hybrid case and is thus subject to a six month statute of limitations period, is unconvincing and distinguishable. The claimant only sued her employer because they stopped paying contributions into the medical insurance fund. Loretto does not allege that the union failed to meet its duty of competent representation. Therefore, the instant suit fails to meet the criteria of a hybrid case and a six month statute of limitations period is not applicable.

In addition, the overarching dispute at issue is governed by the law of contracts. Under CPLR § 213(2), all contractual claims have a six year statute of limitations. Article 29 of the collective bargaining agreement specifically grants the right of the employee to sue the employer if the employer ceases to make payments into the union medical insurance fund. The provision means that a single employee can undertake private civil action to seek compensation. Filing suit against the employer is the sole way for the claimant to obtain recovery due to the Article 29 provision, which confers this right to individual employees, not the union. The union can only seek to enforce the contribution fund. Impliedly, the contract does not absolve the defendant from being liable to individual members for medical costs.

The motion filed by the defendant fails to conclusively dispose of the claimant's claim.

Notwithstanding the controlling statutory and case law cited herein, the court also notes that the parties already tried this case, and defendant thereby waived the statute of limitations defense.

Lastly, the Court notes, as a general rule, motion practice is not favored in Small Claims Court. "[P]re-trial motions to dismiss...should rarely, if ever, be entertained in Small Claims [*4]Court." (Friedman v. Seward Park Housing, 167 Misc 2d 57).

In accordance with statutory and case law, defendant's motion to dismiss is denied.

The case shall appear on the Small Claims calendar of this Court on July 22, 2010, at 6:00 P.M.

The foregoing shall constitute the Decision and Order of the Court.

Dated: June 28, 2010

Kim DollardJudge, Civil Court

ASN by__________ in Court