This case arises from the termination of plaintiff's employment as a police officer with defendant City of Buffalo (City) following arbitration between the City and defendant Buffalo Police Benevolent Association, Inc. (PBA). After a hearing, the arbitrator found plaintiff guilty of the disciplinary charges pending against her and that termination was the appropriate penalty. The City subsequently terminated plaintiff's employment on October 16, 2014.

Plaintiff commenced an action against the City and the PBA by filing a summons and complaint (original complaint) on February 10, 2015. Plaintiff, however, never served defendants with the original complaint. Instead, on May 21, 2015, plaintiff filed an "amended" summons and complaint (amended complaint), which was served upon defendants on May 26, 2015. In the amended complaint plaintiff alleged that: 1) the PBA breached the duty of fair representation; 2) the City breached the CBA in terminating her employment; 3) defendants conspired to breach the duty of fair representation and the CBA in order to unlawfully terminate her; and 4) the City violated her right to procedural due process.

Defendants each moved to dismiss the amended complaint pursuant to CPLR 3211(a) (5) and (7). This Court, in an order entered February 2, 2016, dismissed plaintiff's amended complaint in its entirety with prejudice (NYSCEF Doc. No. 42), and the Appellate Division, Fourth Department, affirmed (159 AD3d 1448 [4th Dept 2018]). The Court of Appeals, however, reversed and reinstated plaintiff's first and second courses of action, determining that they were timely interposed and remitting to the Appellate Division for consideration of PBA's arguments raised, but not addressed on the appeal to that Court, that plaintiff's first cause of action should be dismissed pursuant to CPLR 3211(a) (7) (34 NY3d 1104 [2019]). Upon remittal, the Appellate Division held that plaintiff had sufficiently stated a cause of action for [*2]breach of duty of fair representation and reinstated plaintiff's first and second causes of action (181 AD3d 1337 [4thDept 2020]). On April 30, 2021, PBA interposed an answer to the amended complaint (NYSCEF Doc. 57), and the City likewise interposed an answer to the amended complaint (NYSCEF Doc. No. 60). Extensive discovery then ensued on these two remaining courses of action, and the note of issue was filed on September 25, 2024 (NYSCEF Doc. No. 95).

On January 23, 2025, the City moved pursuant to CPLR 3212, dismissing the complaint and the underlying claims "against all defendants" (NYSCEF Doc. No. 96). Also on January 23, 2025, the PBA moved pursuant to CPLR 3212 to dismiss the complaint (NYSCEF Doc. No.114). On March 27, 2025 the Court heard oral argument on the motions.

In reaching its decision on the motions, the Court reviewed NYSCEF Doc. Nos.96-269 and considered counsel's contentions at oral argument.

Plaintiff was appointed to the Buffalo Police Department as a patrol officer on or about July 23, 1998, as an employee of the City, and served in that capacity until the termination of her employment on October 16, 2014.

During her period of employment plaintiff was a member of the PBA, a duly recognized Public Sector Employee Organization consisting of over 700 Members of the Buffalo Police Department. As such, the PBA had a duty of fair representation (DFR) of the plaintiff in labor matters arising from her employment with the City, including disciplinary matters.

During her period of employment, plaintiff was charged with multiple disciplinary charges on allegations of misconduct by the City of Buffalo Police Internal Affairs Division (IAD), as follows:

a) IAD Case No.: 2009-154: Plaintiff was arrested by Lancaster Police for harassment in the second degree (Penal Law § 240.26) pursuant the complaint of a process server;

b) IAD Case No.: 2010-319: plaintiff was accused of insubordinate conduct toward Lieutenant Sheila Wiles;

c) IAD Case No.: 2011-327: Plaintiff allegedly threatened the City's Parking Violation Bureau staff;

d) IAD Case No.: 2012-188: Plaintiff was arrested by Buffalo Police on a charge of harassment in the second degree (Penal Law § 240.26) while at a Buffalo hospital;

e) IAD Case No.: 2012-190: An arrestee filed a complaint against plaintiff alleging unnecessary force during an arrest;

f) IAD Case No.: 2012-307: Plaintiff was arrested by Lancaster Police for allegedly violating Penal Law § 215.50-3, criminal contempt in the second degree; and

g) IAD Case No.: 2013-316: A complaint was filed against plaintiff by a civilian, Valerie Buchnowski, alleging that plaintiff, while on duty and in uniform, threatened to kill Buchnowski and threatened to prevent her from becoming a police officer.

All of Plaintiff's disciplinary charges remained unresolved as of April 1, 2014. Before April 1, 2014, Article XII of the Collective Bargaining Agreement ("CBA") between the PBA and the City set forth the procedure for resolving disciplinary charges against PBA Members. That procedure included the requirement for notice to and service upon the officer and the PBA of written charges, the requirement of a written answer within 10 days from the accused to the [*3]City, and an informal conference where the accused would be entitled to representation by the PBA or counsel and the presentation of witness testimony should the accused so choose. If the charges were not withdrawn or dismissed or a guilty plea was not entered at the informal conference, the matter would proceed to a formal conference held before an impartial hearing officer mutually selected by the parties for disposition.

On or about May 5, 2014, the parties entered into a Memorandum of Understanding (MOA) that modified the existing disciplinary process under the CBA effective April 1, 2014. Pursuant to the MOA, the parties agreed to establish an Alternate Dispute Resolution Program for disciplinary matters whereby all disciplinary matters then currently pending and all subsequent charges against any PBA Member that were not resolved at the informal conference would proceed to a "triage phase" held before Arbitrator Jeffrey M. Selchick, Esq., who would have full and complete authority to suggest and accomplish resolution of the charges, dismiss the charges, or direct the matter to proceed to an expedited or a "traditional hearing." Under this MOA, the City and the PBA would retain the option to call for a traditional hearing.

On May 5, 2014, a second MOA was also executed by the PBA and the City whereby it was agreed, inter alia, that "all of Ann Vanyo's outstanding disciplines will be the first matter arbitrated under the Alternative Dispute Resolution Program."

All of the charges outlined above resulted in written charges being served upon the plaintiff and the PBA. The PBA timely interposed an Answer on behalf of plaintiff to each of these charges denying their material allegations and interposing several affirmative defenses. The PBA and counsel for the PBA appeared at the informal conferences with plaintiff and entered not guilty pleas to all on her behalf. Ultimately, all charges were referred to the Alternative Dispute Resolution Program - the so-called "triage phase" phase - for disposition, if possible.

On June 17, 2014, all of these above charges were presented to Hearing Officer Selchick pursuant to the procedure adopted under the May 5, 2014, MOAs.

Pursuant to the further terms of the MOA, prior to the Hearing, a file for each disciplinary matter containing the charges, the answer to the charges, the transcript from the informal conference and any and all additional relevant documentation and evidence was provided by the City to the PBA and the hearing officer.

Catherine Creighton, Esq., attorney for the PBA, appeared and advocated on behalf of plaintiff at the June 17, 2014, triage hearing. Mary Scarpine, Esq. Assistant Corporation Counsel, appeared on behalf of the City. Plaintiff was not present at the triage hearing.

As a result of the hearing, the following determinations were made by Arbitrator Selchick and agreed to by the PBA and the City:

a) IAD Case No. 2009-154: Charge sustained. Discipline Imposed: two working days suspensions without pay;

b) IAD Case No. 2010-319: Charge sustained. Discipline Imposed: two working days suspension without pay;

c) IAD Case No. 2011-327: Charge sustained. Discipline Imposed: Reprimand;

d) IAD Case No. 2012-188: Charge sustained. Discipline Imposed: four working days suspension without pay;

e) IAD Case No. 2012-190: Charge Dismissed.

f) IAD Case No. 2012-307: Charge Sustained. Discipline Imposed: six working days suspension without pay; and

g) IAD Case No. 2012-316: Referred to traditional hearing.

On July 23, 2014, a traditional hearing was held before Hearing Officer Selchick on the IAD Case No. 2012-316 charges arising from the complaint by Valerie Buchnowski. The record reflects appearances by Catherine Creighton, Esq, counsel for the PBA, and Mary Scarpine. Esq., Assistant Corporation Counsel, for the City. The record reflects that plaintiff was present for the hearing and represented by separate counsel.

At this hearing the applicable provisions of the parties' CBA and the Alternative Dispute Resolution Program for disciplinary matters as set forth in the May 5, 2014 MOA were received in evidence; the notice of charges by the City dated October 15, 2012, together with plaintiff's answer with affirmative defenses, were also entered into the record, witnesses were called by the City and the PBA, cross-examined by counsel for both parties; and the PBA made a post hearing submission on behalf of plaintiff.

On or about October 14, 2014, Hearing Officer Selchick issued an Opinion and Award (Award) in the matter. In this Award, Selchick found that "[a] comprehensive defense [was] offered by the PBA at the hearing and in its post-hearing submission on behalf of" plaintiff. Selchik's Award states, in pertinent part, as follows: "For the reasons set forth, the Hearing Officer finds Police Officer Ann Vanyo is guilty of all outstanding Charges set forth in the IAD Number 2012-316. Termination of employment is the appropriate penalty and should be accomplished forthwith."

On October 16, 2014, by Special Order of Commissioner of Police, Daniel Derenda, plaintiff's employment with the City of Buffalo Police Department was terminated.

Pursuant to the terms of the May 5, 2014, MOA between the PBA and the City, the Award was final and binding on the parties. The PBA did not appeal the Award. The record contains a letter from the PBA to plaintiff advising that the PBA had consulted two appellate attorneys, both of whom recommended against taking an appeal because the chances of success were low.

Around the time plaintiff was initially served with charges on the complaint of Valerie Buchnowski, she was suspended without pay by Commissioner Derenda. The then-President of the PBA approached the Commissioner and persuaded him to restore plaintiff to pay status. Plaintiff's suspension was rescinded but she was reassigned from her regular D District assignment to the Department's Camera Room.

On or about December 26, 2012, the PBA filed a grievance on plaintiff's behalf alleging that her assignment to the Camera Room beyond 30 days was a violation of the CBA and seeking all back pay and any overtime pay she missed due to the Camera Room assignment.

On March 13, 2013, this Grievance was reviewed by Master Arbitrator Selchick, who rendered another award finding that there was no provision in the CBA that allowed such a reassignment and directing the City to immediately return plaintiff to her regular "D" District assignment.

On March 27, 2013, plaintiff reported to her regular assignment to "D" District, but was ordered suspended again - this time with pay. On or about April 1, 2013, the PBA filed a Grievance on plaintiff's behalf challenging this subsequent suspension. This Grievance proceeded to a full arbitration hearing before Arbitrator Dennis J. Campagna, Esq.

Arbitrator Campagna rendered a Decision and Award (Campagna Award) in favor of the plaintiff and directing that she be returned to "D" District assignment and further that she be paid for all lost overtime opportunities she suffered during her period of suspension.

Thereafter, the PBA brought a CPLR Article 75 proceeding in Supreme Court, Erie County to confirm the Campagna Award. The City opposed and cross-moved to vacate the Award. During this litigation, the parties entered negotiations resulting in an agreement whereby the City would pay $6,000 for Plaintiff's lost overtime opportunities occasioned by her suspension. These funds were paid to U.S. Bankruptcy Trustee Harold Bulan for distribution pursuant to plaintiff's previously filed bankruptcy case. In return, the PBA released the City from all further claims arising from the Campagna Award.

The Plaintiff's sole remaining cause of action against the PBA is alleged breach of the DFR. In its motion the PBA points to the record demonstrating that it appeared on behalf of the plaintiff at each and every stage of the myriad disciplinary proceedings brought by the BPD against the Plaintiff; received and reviewed the notice of charges; prepared and interposed an answer on her behalf, denying the material allegations of each of the charges and setting forth appropriate affirmative defenses and appeared at each scheduled informal conference conducted in relation to such charges; and entered a plea of not guilty on her behalf and requested a formal hearing, all in conformity with the disciplinary procedure then set forth required under the CBA (NYSCEF Doc. No. 115).

Moreover, the PBA contends that the PBA agreed with the City to modify the existing disciplinary process by incorporating the "triage process" pursuant to the MOA in order to achieve a legitimate union objective. The PBA cites to the deposition of former PBA Presidents Kennedy and Evans that the MOA was agreed to in order to remedy a significant and overwhelming backlog of disciplinary cases against PBA members due to the deficiencies in the existing process and to counter the consequences of a policy by then-BPD Commissioner Derenda that prohibited promotion of any officer who had pending disciplinary charges against him or her until such charges were resolved (NYSCEF Doc. Nos. 121-122). Significantly, the PBA points out that this was an important objective for plaintiff herself: At the time she was on the short-list for promotion to Lieutenant and could not be promoted to that position with pending disciplinary charges due to Derenda's policy (NYSCEF Doc. No. 121). Indeed, the record indicates that plaintiff repeatedly advocated having her outstanding charges heard first so she would be eligible for promotion (id.). All officers whose disciplinary charges were resolved under the MOA were subject to the same disciplinary process as plaintiff (NYSCEF Doc. No. 115). As indicated above, the discipline imposed on plaintiff because of the MOA'S triage process were fairly mild.

Finally, the PBA argues that it fulfilled its DFR to the plaintiff in the manner in which it prepared for and defended the plaintiff in the formal hearing in connection with the Buchanowski complaint. As arbitrator Selchick acknowledged in his award that the PBA presented a "comprehensive defense" on behalf of plaintiff (NYSCEF Doc. No. 131). During discovery in this matter, the PBA attorney testified extensively about her preparation for formal hearing and the activities she took in furtherance of plaintiff's defense and about the legitimate reasons as to why she did not call plaintiff or another witness at the formal hearing (NYSCEF Doc. No. 124). Revealingly, the PBA in fact prevailed on behalf of the plaintiff on each of the two separate grievances submitted in connection with plaintiff's reassignment and suspension and achieved a monetary award on her behalf (NYSCEF Doc. Nos. 134-135).

Plaintiff's opposition to the motion paints a dark picture of a broad conspiracy undertaken [*4]by the PBA and the City to terminate her. Plaintiff alleges that: (i) the City and PBA "manipulated" the disciplinary process to ensure her termination; (ii) the triage process under the MOA was designed to expedite plaintiff's case ahead of others, "suggesting pretextual motives"; (iii) the disciplinary sanctions imposed on plaintiff were "disproportionate ... compared to similarly situated male officers, establishing a clear pattern of gender-based disparate treatment" and (iv) the City and the PBA "collud[ed]" to facilitate plaintiff's removal from the PBA (NYSCEF Doc. No. 140 [affirmation of Chad Davenport in opposition to PBA's motion (Davenport affirmation)]. Plaintiff further contends that in the same furtive manner, the City and the PBA allowed a "biased hearing officer, Jeffrey Selchick, to preside over her case without challenge, despite his history of adverse rulings against her and his questionable impartiality" (id.). Tellingly, the plaintiff concludes by asserting that the PBA breached its DFR by "mishandling [p]laintiff's defense and failing to advocate effectively on her behalf" (id. [emphasis added]).

It is well established that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering admissible evidence to demonstrate the absence of any issue of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557. 562 [1980]). Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the moving papers (Alvarez, 68 NY2d at 324; see Iskalo Elec.Tower LLC v Stantec Consulting Servs., Inc., 219 AD3d 1157, 1161 [4th Dept 2023]). Once that showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial (Zuckerman, 49 NY2d at 562). On a motion for summary judgment a court must view the evidence in the light most favorable to the nonmoving parties and afford them the benefit of every reasonable inference (Barnett v Allen, 218 AD3d 1190, 1191 [4th Dept 2023]).

To establish that a bargaining agent or union breached the DFR, a plaintiff must show that the union's conduct was "arbitrary, discriminatory, or in bad faith" (Calkins v Police Benev. Ass'n of New York State Troopers, Inc., 55 AD3d 1328, 1329 [4th Dept 2008]). "'There must be substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate ... objectives [of the bargaining agent]' "(id., quoting Mellon v Benker, 186 AD2d 1020, 1020 [4th Dept1992]; see Badman v Civil Service Employee's Ass'n, 91 AD2d 858, 859 [4th Dept 1982]).

The Court concludes that the PBA met its burden on summary judgment, and plaintiff failed to raise a genuine issue of material fact in response thereto. The gravamen of the plaintiff's opposition to the PBA's motion, by plaintiff's own admission, is that the PBA breached its DFR by "mishandling" her defense and failing to "advocate effectually" on her behalf (Davenport affirmation). However, it is well established that "the fact that the union was guilty of mistake, negligence or lack of competence" does not sustain a DFR claim (Mellon, 186 AD2d at 1021). Moreover, a union has substantial discretion with respect to the processing of grievances (id.), and the PBA met its initial burden on its motion that it undertook "good-faith balancing of the divergent interests" of its membership when it entered into the MOA with the City to establish the triage process (Civil Serv. Bar Assn. v Local 227, Intl. Bhd. Of Teamsters, 64 NY2d 188, 197 [1984]). The surmise, conjecture and innuendo offered by plaintiff in response to the PBA's [*5]motion were insufficient to establish any bad faith or nefarious conduct on the part of the PBA (see ARC Mun. Securities, Corp. v Kleinberg, Kaplan, Wolff & Cohen P.C., 233 AD2d 187,187 [1st Dept 1995]).

The Court similarly concludes that the City has established its entitlement to summary judgment. Assuming arguendo that the plaintiff exhausted her administrative remedies under the CBA and has standing to bring this action against the City — propositions that the City vigorously disputes (NYSCEF Doc. No. 98) — it is well established that the "indispensable predicate for an action against an employer is not a showing that the discharge was in violation of the CBA, but instead a demonstration that the Union breached its duty of fair representation" (Mohan v United Univ. Professions, Misc 2d 118, 121-122 [Sup Ct Chautauqua County 1984, citing DelCostello v Int'l Bhd. Of Teamsters, 462 US 151, 158-159 [1983]). Quite simply, plaintiff here was required to establish that the PBA had breached its duty of fair representation before she was entitled to read the merits of her claim against the City. "Because plaintiff cannot state an unfair representation claim against PBA, her claim against her employer, defendant [City], alleging a breach of the collective bargaining agreement, must also fail" (Henville v Metropolitan Transp. Authority, 148 AD3d 460, 460-461 [1st Dept 2017]).

In light of the foregoing, the motions of the PBA and the City are granted, the plaintiff's complaint is dismissed, and the case is stricken from the Court's trial calendar.

The parties are directed to submit an order, on notice, in accordance with this decision within 30 days of the date hereof.