| Zito v New York City Off. of Payroll Admin. |
| 2015 NY Slip Op 06274 [130 AD3d 1326] |
| July 23, 2015 |
| Appellate Division, Third Department |
[*1]
| Stephanie L. Zito, Appellant, v New York City Officeof Payroll Administration et al., Respondents, et al.,Defendant. |
Stephanie L. Zito, Davenport, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York City (Elizabeth I. Freedman ofcounsel), for New York City Office of Payroll Administration and others,respondents.
Peters, P.J. Appeal from an order of the Supreme Court (Lambert, J.), enteredDecember 6, 2013 in Delaware County, which, among other things, granted defendants'motions to dismiss the complaint.
From 1987 through 1992, plaintiff was employed part time by defendant New YorkCity Department of Education (hereinafter DOE) as a substitute teacher and was requiredto pay a Federal Insurance Contributions Act (hereinafter FICA) tax on her earnings. In1988, the Court of Appeals held that part-time city employees were entitled to join theNew York City Employees' Retirement System (see Doctors Council v New YorkCity Employees' Retirement Sys., 71 NY2d 669, 677 [1988]) and, as a result of thatdecision, the Social Security Administration and the Internal Revenue Servicedetermined that part-time city employees were entitled to a refund of FICA taxes thatthey had erroneously paid. To obtain the refund, eligible part-time employees wererequired to sign a consent form authorizing defendant New York City Office of PayrollAdministration (hereinafter OPA) to apply for the refund on his or her behalf.
With assistance from DOE and defendant United Federation of Teachers (hereinafterUFT), OPA identified plaintiff as an employee eligible for the refund and mailed lettersto her last known address in 1994, 1997 and 1998, requesting that she complete andreturn the enclosed claim authorization form. Plaintiff, who had moved in 1992, neverreceived the letters and, thus, [*2]did not submit a claimauthorization form before the Internal Revenue Service and the Social SecurityAdministration ceased accepting refund claims in 2006. Plaintiff learned of the refundprogram in 2007 and, in the years that followed, made numerous unsuccessful efforts toobtain her refund.
Plaintiff commenced this action against DOE, OPA and defendants New York CityComptroller John C. Liu and former New York City Comptroller William C. ThompsonJr. (hereinafter collectively referred to as the city defendants), as well as UFT, assertingcauses of action sounding in, among other things, negligence and breach of fiduciaryduty. The city defendants and UFT separately moved to dismiss the complaint, andplaintiff moved for a default judgment against the city defendants on the basis that theirmotion was untimely served. Supreme Court denied plaintiff's motion and granteddefendants' motions. Plaintiff appeals.[FN*]
We affirm, albeit primarily on different grounds than relied upon by Supreme Court.Initially, the causes of action sounding in negligence, fraud, breach of fiduciary duty andbreach of the duty of fair representation—specifically, the second, third, fourthand seventh causes of action—must be dismissed against the city defendantsbecause plaintiff did not serve a notice of claim upon them (see GeneralMunicipal Law § 50-e [1] [a]; Montano v City of Watervliet, 47 AD3d 1106, 1109[2008]; Serkil, L.L.C. v City of Troy, 259 AD2d 920, 922 [1999], lvdenied 93 NY2d 811 [1999]). Indeed, service of a notice of claim upon amunicipality is a condition precedent to maintaining a tort claim against municipaldefendants (see General Municipal Law §§ 50-e [1] [a]; 50-i[1]; Barchet v New York City Tr. Auth., 20 NY2d 1, 4 [1967]; Smith v Town of Long Lake,40 AD3d 1381, 1384 [2007]; Matter of Tara V. v County of Otsego, 12 AD3d 984, 985[2004]).
Plaintiff's remaining causes of action must be dismissed for failure to state a claim. Inresolving a motion to dismiss for failure to state a cause of action, we "liberally construethe complaint, 'accept the facts as alleged in the complaint as true, accord [the] plaintiff[ ]the benefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory' " (Beesmer v Besicorp Dev., Inc.,72 AD3d 1460, 1461-1462 [2010] [citation omitted], quoting Leon vMartinez, 84 NY2d 83, 87-88 [1994]). However, we will not accept as true factualallegations and legal conclusions that are " 'inherently incredible or flatlycontradicted by documentary evidence' " (Mesiti v Mongiello, 84 AD3d 1547, 1549 [2011], quotingQuail Ridge Assoc. v Chemical Bank, 162 AD2d 917, 918 [1990], lvdismissed 76 NY2d 936 [1990]).
Applying these principles here, we conclude that plaintiff's first, fifth, sixth andeighth causes of action fail to state a claim. In her first cause of action, plaintiff merelyalleges damages, without specifying how she is legally entitled to them (see UnionBrokerage v Dover Ins. Co., 97 AD2d 732, 733 [1983]). Plaintiff's fifth cause ofaction, in which she alleged that OPA, Thompson and Liu violated their duties "in themanagement and disposition of corporate assets committed to [their] charge" (BankingLaw § 7017 [1] [a] [1]), also fails, as plaintiff did not timely authorize theUnited States Treasury to release her FICA refund to OPA. As for her sixth cause ofaction, even if properly asserted against OPA and DOE, Labor Law § 727does not provide plaintiff with a private right of action to enforce a union "officer'sfinancial reporting and accounting obligations" (Ash v Scanlon, 19 AD3d 187, 188 [2005]). Finally,plaintiff's eighth cause of action, which alleged that the city defendants violated theCourt of Appeals' ruling in [*3]Doctors Council vNew York City Employees' Retirement Sys. (71 NY2d 669 [1988], supra),patently lacks merit because OPA obtained plaintiff's last known address from DOE andUFT, sent a claim authorization form to this address on three separate occasions andobtained FICA refunds for eligible employees who completed and returned the form.Accordingly, the city defendants' motion to dismiss the complaint was properlygranted.
Plaintiff's remaining contentions, to the extent they have not been rendered academicby our decision, have been considered and rejected.
Lahtinen, Garry and Devine, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *:This Court grantedplaintiff's motion to withdraw and discontinue her appeal against UFT (2015 NY Slip Op65159[U] [2015]).