By: Daily Record Staff//February 13, 2012
By: Daily Record Staff//February 13, 2012//
Appellate Division, Fourth Department
Fair Representation — Statute of Limitations
Mercone v. Monroe County Deputy Sheriffs’ Assoc. Inc.
Appealed from Supreme Court, Monroe County
Background: The plaintiff, a former deputy sheriff, was discharged by letter dated Dec. 15, 2004. Pursuant to the union’s collective bargaining agreement, the sheriff and the defendant union had 10 days to file a grievance and demand arbitration. The plaintiff testified at trial that the defendant’s outgoing president assured him that a grievance was timely filed. However, by February 2005, no grievance had been filed. The plaintiff appealed from an order dismissing his claim against the defendant for its breach of fair representation.
Ruling: The Appellate Division affirmed. The Appellate Division held that the action was, in fact, time barred. The harm occurred when the defendant breached in December 2004. The plaintiff did not commence the action until August 2005. In addition, the continuous representation doctrine did not toll the statute of limitations as the relationship between the plaintiff and the defendant was not the type of professional relationship imposing a duty of trust and confidence.
Frank A. Alot for the plaintiff-appellant; Daniel P. Debolt of Trevett Cristo Salzer & Andolina PC for the defendant-respondent