Herington v. Civil Service Employees Ass'n

Order unanimously affirmed, without costs. Memorandum: We affirm for reasons stated in the memorandum decision at Supreme Court (Scudder, J.). We add only that plaintiff has no cause of action against his union either for breach of contract or for negligence arising out of the performance of duties 962 assumed under the collective bargaining agreement; his sole remedy is an action for breach of fair representation (see, Condon v Local 2944, 683 F2d 590, 595; Dente v International Org., 492 F2d 10, cert denied 417 US 910; Ferrara v American ACMI, 122 AD2d 930; Kaminsky v Connolly, 51 AD2d 218, affd 41 NY2d 1068). The complaint fails to state a cause of action for breach of fair representation (see, Smith v Sipe, 109 AD2d 1034, 1036 [Mahoney, P. J., dissenting], revd for reasons stated in dissenting mem at App Div 67 NY2d 928). (Appeal from order of Supreme Court, Livingston County, Scudder, J. —resettle order.) Present—Dillon, P. J., Callahan, Boomer, Balio and Davis, JJ.